As
filed
with the Securities and Exchange Commission on October 14,
2008
Registration
No. _______
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_______________
THE
FEMALE HEALTH
COMPANY
(Exact
name of registrant as specified in its charter)
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Wisconsin
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39-1144397
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(State
or Other Jurisdiction of
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(I.R.S.
Employer
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Incorporation
or Organization)
|
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Identification
No.)
|
|
|
|
|
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515
North State Street, Suite 2225
|
|
|
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Chicago,
Illinois
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60654
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(Address
of principal executive offices)
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(ZIP
Code)
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THE
FEMALE HEALTH COMPANY
2008
STOCK INCENTIVE
PLAN
(Full
title of the plan)
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O.B.
Parrish
Chairman
and Chief Executive Officer
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Copy
to:
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The
Female Health Company
515
North State Street, Suite 2225
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B
enjamin
G. Lombard,
Esq.
Reinhart
Boerner Van Deuren s.c.
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Chicago,
Illinois 60654
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1000
North Water Street
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(Name
and address of agent for service)
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Suite
1700
Milwaukee,
Wisconsin 53202
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312-595-9123
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414-298-1000
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(Telephone
number, including area code of agent for service)
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Indicate
by check mark whether the restraint is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of "large accelerated filer," "accelerated filer" and "smaller
reporting company" in Rule 12b-2 of the Exchange Act.
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Large
accelerated
filer
o
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Accelerated
filer
o
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Non-accelerated
filer (Do not check if a smaller reporting
company)
o
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Smaller
reporting company
x
|
_______________
CALCULATION
OF REGISTRATION FEE
|
Title
of Securities
to
be Registered
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Amount
to be
Registered
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Proposed
Maximum
Offering
Price
Per
Share
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Proposed
Maximum
Aggregate
Offering
Price
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Amount
of
Registration
Fee
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Common
Stock, $.01 par
value
per share
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2,000,000
(1)
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$2.675
(2)
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$5,350,000
(2)
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$210.26
(2)
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(1)
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This
Registration Statement also covers any additional shares of Common
Stock
which become issuable under The Female Health Company 2008 Stock
Incentive
Plan (the "Plan") by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt
of consideration by The Female Health Company (the "Registrant")
which
results in an increase in the number of the outstanding shares of
the
Registrant's Common Stock.
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(2)
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For
the purpose of computing the registration fee, the Registrant has
used
$2.675 as the average of the high and low prices of the Common Stock
as
reported on October 8, 2008 on the American Stock Exchange for the
offering price per share, in accordance with Rule 457(c) and
(h). The actual offering price will be determined in accordance
with the terms of the Plan.
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PART
II -
INFORMATION REQUIRED IN THE
REGISTRATION
STATEMENT
Item
3.
Incorporation of
Documents
by Reference
.
The
following documents filed by the
Registrant with the Securities and Exchange Commission (the "Commission")
pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934
(the "Exchange Act") are incorporated herein by reference:
(a)
The Registrant's Annual Report on Form 10-KSB for the year ended
September 30, 2007.
(b)
All other reports filed by the Registrant pursuant to section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the Annual
Report on Form 10-KSB referred to in paragraph (a) above.
(c)
The description of the Registrant's Common Stock contained in the registration
statement filed pursuant to section 12 of the Exchange Act and all
amendments thereto or reports filed for the purpose of updating such
description.
All
reports and other documents
subsequently filed by the Registrant pursuant to sections 13(a), 13(c), 14
and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of filing of such
documents.
Any
statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to
be modified or superseded for purposes hereof to the extent that a statement
contained in any other subsequently filed document which also is or is deemed
to
be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
hereof.
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 directors and officers
are entitled to certain statutory rights to be indemnified by the Registrant
against certain liabilities and expenses, provided the director or officer
is
either successful in the defense of such litigation or is otherwise determined
not to have engaged in willful misconduct, knowingly violated a criminal law,
failed to deal fairly with the Registrant or its shareholders in connection
with
a matter in which the director or officer had a material conflict of interest
or
derived an improper personal benefit in the performance of his duties to the
Registrant.
Article VIII
of the Registrant's
By-Laws contains provisions entitling directors and officers of the Registrant
to indemnification against certain liabilities and
expenses. Registrant's By-Laws are incorporated by reference in
Exhibit 4.6.
Directors
and officers of the
Registrant are covered by directors' and officers' liability insurance under
which they are insured (subject to certain exceptions and limitations specified
in the policy) against expenses and liabilities arising out of proceedings
to
which they are parties by reason of being or having been directors or
officers.
Item
7.
Exemption from Registration
Claimed
.
Not
applicable.
Item
8.
Exhibits
.
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4.1
|
Amended
and Restated Articles of Incorporation of the
Registrant.
|
|
4.2
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Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 27,000,000
shares.
|
|
4.3
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 35,500,000
shares.
|
|
4.4
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 38,500,000
shares.
|
|
4.5
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Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant designating the terms and preferences for the Class A
Preferred
Stock – Series 3.
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4.6
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Amended
and Restated By-Laws of the Registrant.
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5
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Opinion
of Reinhart Boerner Van Deuren s.c. as to the legality of the stock
being registered
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23.1
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Consent
of Independent Registered Public Accounting Firm
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23.2
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Consent
of Reinhart Boerner Van Deuren s.c. (included in its opinion filed
as
Exhibit 5 hereto)
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24
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Power
of Attorney (included on the signature page
hereto)
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Item
9.
Undertakings
.
1.
The undersigned Registrant hereby undertakes as follows:
(a)
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
of
1933.
(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.
(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 (1)(a)(i) and (1)(a)(ii) do not apply if the 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 that are
incorporated by reference in the Registration Statement.
(b)
That, for the purpose of determining any liability under the Securities Act
of
1933, 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.
(c)
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.
2.
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, 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.
3.
Insofar as indemnification for liabilities arising under the Securities Act
of
1933 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 of 1933 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 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 Chicago, State of
Illinois, on October 9, 2008.
THE
FEMALE HEALTH COMPANY
BY
/s/
O.B.
Parrish
O.B.
Parrish,
Chairman and Chief Executive Officer
POWER
OF
ATTORNEY
Each
person whose signature appears
below hereby constitutes and appoints O.B. Parrish and Donna Felch, and each
of
them individually, his or her true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for him or her and in his or
her
name, place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto each
said
attorney-in-fact and agent full power and authority to do and perform each
and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent
or his substitute may lawfully 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 dates indicated.
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Signature
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Title
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Date
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/s/
O.B. Parrish
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Chairman
of the Board, Chief Executive
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October 9,
2008
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O.B.
Parrish
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Officer
and Director (Principal Executive Officer)
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/s/
Mary Ann Leeper
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Director
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October 9,
2008
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Mary
Ann Leeper
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/s/
William R. Gargiulo, Jr.
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Director
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October 9,
2008
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William
R. Gargiulo, Jr.
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Director
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October
__, 2008
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David
R. Bethune
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Director
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October ___,
2008
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Stephen
M. Dearholt
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/s/
Michael
R.
Walton
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Director
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October 9,
2008
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Michael
R. Walton
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Director
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October___,
2008
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Richard
E. Wenninger
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/s/
Mary Margaret Frank
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Director
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October 9,
2008
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Mary
Margaret Frank
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/s/
Donna Felch
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Vice
President and Chief Financial Officer
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October 9,
2008
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Donna
Felch
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(Principal
Financial and Accounting Officer)
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The
Female Health Company
(Commission
File No. 1-13602)
EXHIBIT
INDEX
TO
FORM
S-8 REGISTRATION STATEMENT
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Exhibit
Number
|
Description
|
|
Incorporated
Herein
by
Reference to
|
Filed
Herewith
|
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4.1
|
Amended
and Restated Articles of Incorporation of the Registrant.
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The
Registrant's Registration Statement on Form SB-2 filed with the Securities
and Exchange Commission on October 19, 1999.
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4.2
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 27,000,000
shares.
|
|
The
Registrant's Registration Statement on Form SB-2 filed with the Securities
and Exchange Commission on September 21, 2000.
|
|
|
|
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|
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|
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4.3
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 35,500,000
shares.
|
|
The
Registrant's Registration Statement on Form SB-2 filed with the Securities
and Exchange Commission on September 6, 2002.
|
|
|
|
|
|
|
|
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4.4
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant increasing the number of authorized shares to 38,500,000
shares.
|
|
The
Registrant's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2003.
|
|
|
|
|
|
|
|
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4.5
|
Articles
of Amendment to the Amended and Restated Articles of Incorporation
of the
Registrant designating the terms and preferences for the Class A
Preferred
Stock – Series 3.
|
|
The
Registrant's Quarterly Report on Form 10-QSB for the quarter ended
March 31, 2004.
|
|
|
|
|
|
|
|
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4.6
|
Amended
and Restated By-Laws of the Registrant.
|
|
The
Registrant's Registration Statement on Form S-18 filed with the Securities
and Exchange Commission on May 25, 1990.
|
|
|
|
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5
|
Opinion
of Counsel.
|
|
|
X
|
|
|
|
|
|
|
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23.1
|
Consent
of Independent Registered Public Accounting Firm.
|
|
|
X
|
|
|
|
|
|
|
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23.2
|
Consent
of Counsel.
|
|
|
Contained
in Opinion filed as Exhibit 5
|
|
|
|
|
|
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|
24
|
Power
of Attorney.
|
|
Signature
Page to Registration Statement
.
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|
7
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