As filed with the Securities and Exchange Commission on July 23, 2003
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
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REGISTRATION STATEMENT
Under
The Securities Act of 1933
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CURATIVE HEALTH SERVICES, INC.
(Exact name of registrant as specified in its charter)
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Minnesota 41-1503914
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
150 Motor Parkway, Hauppauge, New York 11788-5145
(Address of principal executive offices) (Zip Code)
MICHELLE LEDELL NON-QUALIFIED STOCK OPTION AGREEMENT
DATED JANUARY 18, 2002;
FRANK BERNING NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
JOSEPHINE KELLY NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
MICHAEL MASCITELLI NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
RALPH LUTS NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
KATHLEEN IZZO NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
CAROLE J. BARRY NON-QUALIFIED STOCK OPTION AGREEMENT
DATED OCTOBER 23, 2002;
JAMES CANTWELL NON-QUALIFIED STOCK OPTION AGREEMENT
DATED NOVEMBER 11, 2002;
PAMELA PLASTER NON-QUALIFIED STOCK OPTION AGREEMENT
DATED NOVEMBER 20, 2002;
CHERYL JORGENSON NON-QUALIFIED STOCK OPTION AGREEMENT
DATED NOVEMBER 20, 2002
REBECCA KLAUS NON-QUALIFIED STOCK OPTION AGREEMENT
DATED NOVEMBER 20, 2002;
RENEE WEST NON-QUALIFIED STOCK OPTION AGREEMENT
DATED NOVEMBER 20, 2002;
PAUL M. FRANK NON-QUALIFIED STOCK OPTION AGREEMENT
DATED JUNE 9, 2003;
RICHARD AMICO NON-QUALIFIED STOCK OPTION AGREEMENT
DATED JUNE 9, 2003
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Joseph L. Feshbach
Chief Executive Officer
Curative Health Services, Inc.
150 Motor Parkway
Hauppauge, New York 11788
(631) 232-7000
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Timothy S. Hearn, Esq.
Dorsey & Whitney LLP
50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402
(612) 340-2600
Facsimile: (612) 340-2868
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CALCULATION OF REGISTRATION FEE
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Proposed
Maximum
Title of Proposed Maximum Aggregate Amount of
Securities to be Amount to be Offering Price Offering Registration
registered registered per share (1) Price Fee
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Common Stock, 50,000 shares (2) $19.55 $ 977,500 $ 79
$0.01 par value
Common Stock, 160,000 shares (3) $14.29 $2,286,400 $185
$0.01 par value
Common Stock, 75,000 shares (4) $12.98 $ 973,500 $ 79
$0.01 par value
Common Stock, 120,000 shares (5) $14.35 $1,722,000 $139
$0.01 par value
Common Stock, 85,000 shares (6) $14.88 $1,264,800 $102
$0.01 par value
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Total $584
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(1) In accordance with Rule 457(h) under the Securities Act of 1933, as amended,
the proposed maximum offering price per share is based upon the exercise
prices of the options underlying the related shares of Common Stock.
(2) Consists of 50,000 shares of Common Stock issuable upon the exercise of
options granted under Non-Qualified Stock Option Agreement between the
Company and Michelle LeDell.
(3) Consists of 100,000 shares, 30,000 shares, 24,000 shares, 2,000 shares,
2,000 shares and 2,000 shares of Common Stock issuable upon the exercise of
options granted under Non-Qualified Stock Option Agreements between the
Company and Frank Berning, Josephine Kelly, Michael Mascitelli, Ralph Luts,
Kathleen Izzo and Carole J. Barry, respectively.
(4) Consists of 75,000 shares of Common Stock issuable upon the exercise of
options granted under Non-Qualified Stock Option Agreement between the
Company and James Cantwell.
(5) Consists of 50,000 shares, 50,000 shares, 10,000 shares and 10,000 shares of
Common Stock issuable upon the exercise of options granted under
Non-Qualified Stock Option Agreements between the Company and Pamela
Plaster,Cheryl Jorgenson, Rebecca Klaus and Renee West, respectively.
(6) Consists of 75,000 shares and 10,000 shares of Common Stock issuable upon
the exercise of options granted under Non-Qualified Stock Option Agreements
between the Company and Paul M. Frank and Richard Amico, respectively.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 of the Securities Act of 1933, as amended (the "Securities Act"),
and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents that we have filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference into this
Registration Statement:
o our Annual Report on Form 10-K for the year ended December 31, 2002,
filed on March 31, 2003;
o our Quarterly Report on Form 10-Q for the quarter ended March 31,
2003, filed on May 15, 2003;
o our Current Reports on Form 8-K, filed on February 5, 2003; February
14, 2003; February 18, 2003; April 29, 2003; June 24, 2003 and July
9, 2003; and
o the description of our common stock contained in any registration
statement or report filed by us under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") subsequent to
the date of this Registration Statement and prior to the filing of a
post-effective amendment indicating that all securities offered by this
Registration Statement have been sold, or deregistering all securities remaining
unsold, shall be deemed to be incorporated by reference in this Registration
Statement and to be a part of this Registration Statement from the respective
dates of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521, subd. 2, of the Minnesota Statutes requires the Registrant to
indemnify a person made or threatened to be made a party to a proceeding by
reason of the former or present official capacity of the person with respect to
the Registrant, against judgments, penalties, fines, including, without
limitation, excise taxes assessed against the person with respect to an employee
benefit plan, settlements, and reasonable expenses, including attorneys' fees
and disbursements, incurred by the person in connection with the proceeding with
respect to the same acts or omissions if, with respect to the acts or omissions
the subject of the proceeding, such person: (1) has not been indemnified by
another organization or employee benefit plan for the same judgments, penalties
or fines; (2) acted in good faith; (3) received no improper personal benefit,
and statutory procedure has been followed in the case of any conflict of
interest by a director; (4) in the case of a criminal proceeding, had no
reasonable cause to believe the conduct was unlawful; and (5) in the case of
acts or omissions occurring in the person's performance in the official capacity
of director or, for a person not a director, in the official capacity of
officer, board committee member or employee, reasonably believed that the
conduct was in the best interests of the Registrant, or, in the case of
performance by a director, officer or employee of the Registrant was serving at
the request of the Registrant or whose duties involved service as a director,
officer, partner, trustee, employee or agent of another organization or employee
benefit plan, reasonably believed that the conduct was not opposed to the best
interests of the Registrant. In addition, Section 302A.521, subd. 3, of the
Minnesota statutes, requires payment by the Registrant, upon written request, of
reasonable expenses in advance of final disposition of the proceeding in certain
instances upon, among other things, receipt of a written undertaking by the
person to repay all amounts so advanced if it is ultimately determined that the
person is not entitled to indemnification, unless otherwise limited by the
Articles of Incorporation or Bylaws of the Registrant. The Registrant's Bylaws
limit the Registrant's indemnification obligations to directors and officers,
except as may otherwise be required by law.
A decision as to required indemnification is made, depending on certain
circumstances, by a disinterested majority of the Board of Directors present at
a meeting at which a disinterested quorum is present, by a designated committee
of the Board, by special legal counsel, by the shareholders, or by a court. The
Registrant's Fifth Restated Articles of Incorporation provide that a director is
not liable to the Registrant or its shareholders for monetary damages resulting
from a breach of fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Registrant or its shareholders;
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; (iii) for transactions from which the
director derived an improper personal benefit; (iv) under the Minnesota
statutory provision making directors personally liable, under a negligence
standard, for unlawful payment of dividends or unlawful stock purchases or
redemptions; or (v) for any act or omission occurring prior to the date of
adoption of such indemnification provision.
The Registrant maintains a directors' and officers' insurance policy (the
"Policy") in the aggregate amount of $10,000,000 which insures the directors and
officers of the Registrant against losses arising from certain claims for any
Wrongful Act (as defined in the Policy) by the directors or officers in their
respective capacities as such, or to the extent that the Registrant has
indemnified such directors or officers, which insures the Registrant against
such losses when and to the extent that the Registrant has indemnified such
directors or officers for such losses under the Registrant's Articles of
Incorporation or Bylaws, by contract or otherwise pursuant to applicable law.
The Policy expires on August 1, 2003 unless renewed or earlier terminated. The
Policy does not cover losses in connection with claims relating to the purchase,
sale, offer or solicitation of an offer to purchase or sell any security or any
violation of the Securities Act or the Exchange Act, and excludes certain other
losses.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description of Exhibit
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 to this
registration statement)
24.1 Power of Attorney
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or other controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Hauppauge, State of New York, on July 23, 2003.
CURATIVE HEALTH SERVICES, INC.
By: /S/
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Joseph L. Feshbach
Chief Executive Officer and Chairman
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Joseph Feshbach, Thomas Axmacher and Nancy F.
Lanis, and each of them his attorney-in-fact, with the power of substitution,
for him in any and all capacities, to sign any amendment or post-effective
amendment to this Registration on Form S-8 or abbreviated registration statement
(including, without limitation, any additional registration filed pursuant to
Rule 462 under the Securities Act of 1933) with respect thereto and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Securities and Exchange Commission, hereby ratifying and confirming all that
said attorney-in-fact, or his substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
registration statement has been signed below by the following persons in the
capacities listed on July 23, 2003:
Signature Title
By: ___________/S/____________ Chief Executive Officer and Chairman
Joseph L. Feshbach (principal executive officer)
By: ___________/S/___________ Executive VP Finance and Chief Financial Officer
Thomas Axmacher (principal financial and accounting officer)
By: __________/S/____________ Director
Paul S. Auerbach
By: _________/S/_____________ Director
Daniel E. Berce
By: _________________________ Director
Lawrence P. English
By: _________/S/_____________ Director
John C. Prior
By: _________________________ Director
Gerard Moufflet
By: _________/S/______________ Director
Timothy I. Maudlin
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
5.1 Opinion of Dorsey & Whitney LLP*
23.1 Consent of Ernst & Young LLP*
23.4 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature page)
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* Filed herewith
Exhibit 5.1
[LETTERHEAD OF DORSEY & WHITNEY LLP]
July 23, 2003
Curative Health Services, Inc.
150 Motor Parkway
Hauppauge, New York 11788
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Curative Health Services, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") covering (i) 50,000 shares of common stock,
$.01 par value per share ("Common Stock") issuable upon the exercise of options
granted under the Non-Qualified Stock Option Agreement between the Company and
Michelle LeDell; (ii) 100,000 shares, 30,000 shares, 24,000 shares, 2,000
shares, 2,000 shares and 2,000 shares of Common Stock issuable upon the exercise
of options granted under Non-Qualified Stock Option Agreements between the
Company and Frank Berning, Josephine Kelly, Michael Mascitelli, Ralph Luts,
Kathleen Izzo and Carole J. Barry, respectively; (iii) 75,000 shares of Common
Stock issuable upon the exercise of options granted under the Non-Qualified
Stock Option Agreement between the Company and James Cantwell; (iv) 50,000
shares, 50,000 shares, 10,000 shares and 10,000 shares of Common Stock issuable
upon the exercise of options granted under Non-Qualified Stock Option Agreements
between the Company and Pamela Plaster, Cheryl Jorgenson, Rebecca Klaus and
Renee West, respectively; and (v) 75,000 shares and 10,000 shares of Common
Stock issuable upon the exercise of options granted under Non-Qualified Stock
Option Agreements between the Company and Paul M. Frank and Richard Amico,
respectively (collectively, the "Agreements," and the shares issuable pursuant
to the Agreements, collectively, the "Agreement Shares").
We have examined such documents and have reviewed such questions of law as
we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions, we have assumed the authenticity of all
documents submitted to us as originals, the genuineness of all signatures and
the conformity to authentic originals of all documents submitted to us as
copies. We have also assumed the legal capacity for all purposes relevant hereto
of all natural persons and, with respect to all parties to agreements or
instruments relevant hereto other than the Company, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinions, we have relied upon certificates of officers of
the Company and of public officials.
Based on the foregoing, we are of the opinion that the Agreement Shares
have been duly authorized and, upon issuance, delivery and payment therefore in
accordance with the terms of the respective Agreements, will be validly issued,
fully paid and non-assessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
...... Very truly yours,
...... /s/ Dorsey & Whitney LLP
Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 333-00000) pertaining to the Michelle LeDell Non-Qualified Stock
Option Agreement dated January 18, 2002; the Frank Berning Non-Qualified Stock
Option Agreement dated October 23, 2002; the Josephine Kelly Non-Qualified Stock
Option Agreement dated October 23, 2002; the Michael Mascitelli Non-Qualified
Stock Option Agreement dated October 23, 2002; the Ralph Luts Non-Qualified
Stock Option Agreement dated October 23, 2002; the Kathleen Izzo Non-Qualified
Stock Option Agreement dated October 23, 2002; the Carole J. Barry Non-Qualified
Stock Option Agreement dated October 23, 2002; the James Cantwell Non-Qualified
Stock Option Agreement dated November 11, 2002; the Pamela Plaster Non-Qualified
Stock Option Agreement dated November 20, 2002; the Cheryl Jorgenson
Non-Qualified Stock Option Agreement dated November 20, 2002; the Rebecca Klaus
Non-Qualified Stock Option Agreement dated November 20, 2002; the Renee West
Non-Qualified Stock Option Agreement dated November 20, 2002; the Paul M. Frank
Non-Qualified Stock Option Agreement dated June 9, 2003; and the Richard Amico
Non-Qualified Stock Option Agreement dated June 9, 2003, of our report dated
February 10, 2003, with respect to the consolidated financial statements and
schedule of Curative Health Services, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 2002, filed with the Securities and
Exchange Commission.
...... /s/ Ernst & Young LLP
Melville, New York
July 23, 2003