Document


As filed with the Securities and Exchange Commission on October 15, 2018

Registration No. 333-
 
 
 
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
 
 
 
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

LA JOLLA PHARMACEUTICAL COMPANY
(Exact name of registrant as specified in its charter)
California
 
33-0361285
(State or other jurisdiction of
incorporation or organization)
 
(I.R.S. Employer
Identification No.)

4550 Towne Centre Court
San Diego, California 92121
(Address of Principal Executive Offices, Zip Code)

La Jolla Pharmaceutical Company 2018 Employee Stock Purchase Plan
(Full title of the plan)

George Tidmarsh, M.D., Ph.D.
President and Chief Executive Officer
4550 Towne Centre Court
San Diego, California 92121
(Name and address of agent for service)

(858) 207-4264
(Telephone number, including area code, of agent for service)

with copies to:
Ryan A. Murr, Esq.
Gibson, Dunn & Crutcher LLP
555 Mission Street
San Francisco, California 94105-0921
Telephone: (415) 393-8200

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
o
 
Accelerated filer
x
 
 
 
 
Non-accelerated filer
o
(Do not check if a smaller reporting company)
Smaller reporting company
o
 
 
 
Emerging growth company
o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o





CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
Amount to be
Registered (1)
Proposed
Maximum
Offering
Price per
Share (2)
Proposed
Maximum
Aggregate
Offering Price (2)
Amount of
Registration Fee
Common Stock, par value $0.0001 per share, reserved under the La Jolla Pharmaceutical Company 2018 Employee Stock Purchase Plan
750,000
$14.83
$11,122,500
$1,348.05

(1)
Pursuant to Rule 416(a) under the Securities Act, as amended (the "Securities Act"), this Registration Statement also covers any additional securities that may be offered or issued in respect of the securities registered by this Registration Statement to prevent dilution as a result of any stock dividend, stock split, recapitalization or other similar transaction, and any other securities with respect to which the outstanding shares are converted or exchanged.
(2)
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457 under the Securities Act, based on a 15% discount from the average of the high and low prices of the registrant’s Common Stock on the Nasdaq Global Select Market on October 11, 2018, with such discount representing the maximum permissible discount offered pursuant to such plan.
 
 
 





PART I

The information called for in Part 1 of Form S-8 is not being filed with or included in this Registration Statement on Form S-8 (by incorporation, by reference or otherwise) in accordance with the provisions of the Securities Act of 1933, as amended (the "Securities Act").


PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

Item 3. Incorporation of Documents by Reference.

The following documents, which have been filed with or furnished to the Securities and Exchange Commission, (the "SEC") by the registrant, are incorporated herein by reference and made a part hereof:

•
The registrant's Annual Report on Form 10-K, as amended on Form 10-K/A for the year ended December 31, 2017, filed with the SEC pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on February 22, 2018 and April 30, 2018, respectively;
•
The registrant’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2018 and June 30, 2018;
•
The registrant’s Current Reports on Form 8-K filed as of January 30, 2018, March 19, 2018, May 14, 2018 and September 18, 2018;
•
The registrant’s Definitive Proxy Statement, filed under Schedule 14A, on August 22, 2018;
•
All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report (other than the portions of these documents not deemed to be filed);
•
The description of the Company's Common Stock contained in Amendment No. 1 to that certain registration statement on Form 8-A (File No. 001-36282), filed with the SEC on October 17, 2014 pursuant to Section 12 of the Exchange Act, including any subsequent amendment or report filed for the purpose of updating that description; and

In addition, all documents filed by the registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof, but prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary in such filing, none of the information that the registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may furnish to the SEC will be incorporated by reference into, or otherwise be included in or deemed to be a part of, this Registration Statement.

Item 4. Description of Securities.

Not Applicable.

Item 5. Interests of Named Experts and Counsel.

Not applicable.






Item 6. Indemnification of Directors and Officers.

The registrant's amended and restated articles of incorporation (the "Articles") provide that the liability of its directors for monetary damages is eliminated to the fullest extent permitted by California law. The Articles and amended and restated bylaws of the registrant provide that the registrant shall fully indemnify its directors and officers who were or are a party or are threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal, administrative or investigative) by reason of the fact that such person is or was a director or officer of the registrant, or is or was serving at the request of the registrant as a director or officer of another corporation or other enterprise or was a director or officer of a corporation that was a predecessor corporation of the registrant, against expenses (including attorneys' fees), judgments, fines, settlements and other amounts actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the registrant and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. To indemnify expenses, judgments, etc., California law requires a determination by (a) majority vote of a quorum of disinterested directors, (b) independent legal counsel in a written opinion if such a quorum of directors is not obtainable (c) shareholders, with the shares owned by the person to be indemnified not being entitled to vote thereon, if any, or (d) the court in which the proceeding is or was pending upon application made by the registrant, agent or other person rendering services in connection with the defense, whether or not the application by such person is opposed by the registrant, that the person seeking indemnification has satisfied the applicable standard of conduct. The registrant has also entered into indemnification agreements with its directors and officers that provide indemnification to the fullest extent permitted by California law.

Item 7. Exemption from Registration Claimed.

Not applicable.

Item 8. Exhibits.
 
 
 
 
Incorporated by Reference
 
 
Exhibit
No.
 
Exhibit
Description
 
Form
 
Date
Filed
 
Filed
Herewith
 
 
S-8
 
12/20/2013
 
 
 
 
 
 
 
 
 
 
 
 
 
8-K
 
1/15/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
8-A/A
 
10/17/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
8-A/A
 
10/17/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
*
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
*
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
DEF 14A
 
8/22/2018
 
 




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 in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered 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) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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; and

(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 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to 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 SEC 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 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 San Diego, California, on October 15, 2018.

 
 
 
LA JOLLA PHARMACEUTICAL COMPANY
 
 
 
 
 
 
By:
/s/    George F. Tidmarsh, M.D., Ph.D.
 
 
Name:
George F. Tidmarsh, M.D., Ph.D.
 
 
Title:
President and Chief Executive Officer



POWER OF ATTORNEY

Each of the undersigned hereby constitutes and appoints George F. Tidmarsh, M.D., Ph. D. and Dennis M. Mulroy as his or her attorney-in-fact, with power of substitution, in his or her name and in the capacity indicated below, to sign any and all further amendments (including post-effective amendments) to this registration statement on Form S-8 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, this registration statement has been signed by the following persons in the capacities and on the date indicated.

 
Signature
 
Title
 
Date
 
 
 
 
 
/s/ George F. Tidmarsh, M.D., Ph.D.
 
Director, President, Chief Executive Officer and Secretary
(Principal Executive Officer)
 
October 15, 2018
George F. Tidmarsh, M.D., Ph.D.
 
 
 
 
 
 
 
 
/s/ Dennis M. Mulroy
 
Chief Financial Officer
(Principal Financial and Accounting Officer)
 
October 15, 2018
Dennis M. Mulroy
 
 
 
 
 
 
 
 
 
/s/ Kevin C. Tang
 
Director, Chairman of the Board
 
October 15, 2018
Kevin C. Tang
 
 
 
 
 
 
 
 
 
 
/s/ Laura L. Douglass
 
Director
 
October 15, 2018
Laura L. Douglass
 
 
 
 
 
 
 
 
 
/s/ Craig A. Johnson
 
Director
 
October 15, 2018
Craig A. Johnson
 
 
 
 
 
 
 
 
 
/s/ Robert H. Rosen
 
Director
 
October 15, 2018
Robert H. Rosen
 
 
 





 
 
 
 
Incorporated by Reference
 
 
Exhibit
No.
 
Exhibit
Description
 
Form
 
Date
Filed
 
Filed
Herewith
 
 
S-8
 
12/20/2013
 
 
 
 
 
 
 
 
 
 
 
 
 
8-K
 
1/15/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
8-A/A
 
10/17/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
8-A/A
 
10/17/2014
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
*
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
*
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
DEF 14A
 
8/22/2018