-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, LWQPxrOtUgAa2f1Chgz1xKMAXkDJztk9/DzoALKM6alpDEaXUyzjO7zzDznC0arh NJFr2zQIufpK7Hb+gUP6mA== 0000929624-99-000485.txt : 19990323 0000929624-99-000485.hdr.sgml : 19990323 ACCESSION NUMBER: 0000929624-99-000485 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990322 EFFECTIVENESS DATE: 19990322 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALZA CORP CENTRAL INDEX KEY: 0000004310 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 770142070 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-74791 FILM NUMBER: 99569403 BUSINESS ADDRESS: STREET 1: 950 PAGE MILL RD STREET 2: PO BOX 10950 CITY: PALO ALTO STATE: CA ZIP: 94303-0802 BUSINESS PHONE: 4154945000 MAIL ADDRESS: STREET 1: 950 PAGE MILL RD STREET 2: PO BOX 10950 CITY: PALO ALTO STATE: CA ZIP: 94303 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on March 19, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ALZA CORPORATION (Exact Name of Registrant as Specified in its Charter) DELAWARE 77-0142070 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Identification No.) Organization) 950 Page Mill Road, P.O. Box 10950, Palo Alto, CA 94303-0802 (650) 494-5000 (Address of Principal Executive Offices) SEQUUS 1987 EMPLOYEE STOCK OPTION PLAN SEQUUS 1987 CONSULTANT STOCK OPTION PLAN SEQUUS 1990 DIRECTOR STOCK OPTION PLAN SEQUUS EQUITY INCENTIVE PLAN SEQUUS AMENDED AND RESTATED EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plan) Bruce C. Cozadd Senior Vice President and Chief Financial Officer ALZA Corporation 950 Page Mill Road P.O. Box 10950 Palo Alto, California 94303-0802 (Name and Address of Agent For Service) (650) 494-5000 (Telephone Number, Including Area Code, of Agent For Service) With copy to: Peter D. Staple Senior Vice President and General Counsel ALZA Corporation 950 Page Mill Road P.O. Box 10950 Palo Alto, California 94303-0802
CALCULATION OF REGISTRATION FEE ================================================================================================================= Proposed Maximum Amount Proposed Maximum Aggregate Amount of Title of Securities to be Offering Price Offering Price Registration to be Registered Registered per Share(1) Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock $0.01 par value 1,550,000 $51.50 $79,825,000 $22,191.35 =================================================================================================================
(1) Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. ================================================================================ PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents, which have been filed by ALZA Corporation ("ALZA") with the Securities and Exchange Commission (the "Commission"), are hereby incorporated by reference in this Registration Statement: (a) ALZA's Annual Report on Form 10-K and 10-K/A for the fiscal year ended December 31, 1997; (b) ALZA's Quarterly Report on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998; (c) ALZA's Current Report on Form 8-K dated October 4, 1998; (d) The description of the Common Stock contained in ALZA's registration statement on Form 8-A, filed May 14, 1992, under the Securities Exchange Act of 1934, as amended ("Exchange Act"), including any amendment or reports filed for the purpose of updating such description; and (e) ALZA's Registration Statement on Form S-4 filed on February 11, 1999 relating to the merger of Argyle Acquisition Corp., a wholly-owned subsidiary of ALZA, with and into SEQUUS Pharmaceuticals, Inc., which merger was completed on March 16, 1999. All documents subsequently filed by ALZA pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the termination of the offering of the securities offered hereby shall be deemed to be incorporated by reference into this registration statement and to be a part hereof from the respective dates 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 of this registration statement to the extent that a statement contained herein, or in any other subsequently filed document that also is or is deemed to be incorporated by reference herein, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Peter D. Staple, ALZA's General Counsel, owns 2,355 shares of Common Stock and options to purchase 135,000 shares of Common Stock, of which 95,000 are exercisable within 60 days of March 15, 1999. In addition, Mr. Staple owns 14,000 shares of restricted stock which vest on August 12, 2002. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of directors of a corporation to the corporation or to any of its stockholders for monetary damage for a breach of his or her fiduciary duty as a director, except in the case where the director breached his or her duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. ALZA's Certificate of Incorporation contains a provision that eliminates directors' personal liability as set forth above. Section 145 of the Delaware General Corporation Law, as amended, provides that a corporation may indemnify any person who was or is a party or is 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 he or she is or was a director, officer, employee or agent of the corporation or is or was serving at its request in II-1 such capacity in another corporation or business association against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action, suit or proceeding if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In addition, Article 9 of ALZA's Certificate of Incorporation provides as follows: Limitation of Liability and Indemnification of Directors. (a) Elimination of Certain Liability of Directors. No director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for any transaction from which the director derived an improper personal benefit. (b) Indemnification and Insurance. (1) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a "proceeding"), because he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise (including service with respect to employee benefit plans), whether the basis of the proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than that law permitted the corporation to provide before such amendment), against all expense, liability and loss (including attorneys' fees, judgments, penalties, fines, Employee Retirement Income Security Act of 1974 excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if the proceeding (or part thereof) was authorized by the Board of Directors of the corporation. Such indemnification shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. The right to indemnification conferred by this Section shall be a contract right which may not be retroactively amended and shall include the right to be paid by the corporation the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Delaware General Corporation Law requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service with respect to an employee benefit plan) in advance of the final disposition of the proceeding shall be made only upon delivery to the corporation of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if ultimately it shall be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The corporation may, by action of its Board of Directors, provide indemnification to employees and agents of the corporation with the same scope and effect as the indemnification of directors and officers. (2) Nonexclusivity of Rights. The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of II-2 this Certificate of Incorporation, bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. (3) Insurance. The corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the corporation or another corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. ALZA has purchased directors and officers liability insurance which would indemnify the directors and officers of ALZA against damages arising out of certain kinds of claims which might be made against them based on their negligent acts or omissions while acting in their capacity as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS 5 Opinion of General Counsel of ALZA 10.1 SEQUUS 1987 Employee Stock Option Plan (1) 10.2 SEQUUS 1987 Consultant Stock Option Plan (1) 10.3 SEQUUS 1990 Director Stock Option Plan and Equity Incentive Plan (1) 10.4 SEQUUS Amended and Restated Employee Stock Purchase Plan (2) 10.5 SEQUUS Equity Incentive Plan (2) 23.1 Consent of General Counsel of ALZA (filed as part of Exhibit 5) 23.2 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney (pages II-5 and II-6) - ----------------------------------- (1) Incorporated by reference to SEQUUS's Annual Report on Form 10-K (file number 000-15847) filed April 1, 1996. (2) Incorporated by reference to SEQUUS's Registration Statement on Form S-8 (file number 333-45697) filed on February 5, 1998. 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; II-3 (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (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; (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 periodic reports filed by the registrant pursuant to Section 13 or 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. (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 liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or 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 provisions described in Item 6, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange 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 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. II-4 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 Palo Alto, State of California, on March 19, 1999. ALZA CORPORATION By: /s/ Ernest Mario _________________________________________ Dr. Ernest Mario, Chairman and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Dr. Ernest Mario and Mr. Bruce C. Cozadd his or her true and lawful attorneys in fact and agents, each acting alone, with full power of substitution and resubstitution, for him or her and in his name, place and stead, in any and all capacities, to sign any or all amendments (including post effective amendments) to the Registration Statement, and to sign any registration statement for the same offering covered by this Registration Statement that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and all post effective amendments thereto, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, each acting alone, or his or her substitute or substitutes, 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 below by the following persons in the capacities indicated as of March 19, 1999.
Signature Title __________________________________ __________________________________________________ /s/ Ernest Mario __________________________________ Chairman of the Board, Chief Executive Officer and Dr. Ernest Mario Director (Principal Executive Officer) /s/ William G. Davis __________________________________ Director William G. Davis /s/ William Brody __________________________________ Director Dr. William Brody /s/ Robert J. Glaser __________________________________ Director Dr. Robert J. Glaser __________________________________ Director Dr. I. Craig Henderson
II-5 /s/ Dean O. Morton Director __________________________________ Dean O. Morton /s/ Denise O'Leary Director __________________________________ Denise O'Leary /s/ Isaac Stein Director __________________________________ Isaac Stein /s/ Julian N. Stern Director __________________________________ Julian N. Stern Senior Vice President and Chief Financial Officer /s/ Bruce C. Cozadd (Principal Financial and Accounting Officer) __________________________________ Bruce C. Cozadd
II-6 Index to Exhibits
Sequentially Item Numbered No. Description of Item Page -------- --------------------------------------------------------------------------- -------------- 5 Opinion of General Counsel of ALZA 10.1 SEQUUS 1987 Employee Stock Option Plan (1) 10.2 SEQUUS 1987 Consultant Stock Option Plan (1) 10.3 SEQUUS 1990 Director Stock Option Plan and Equity Incentive Plan (1) 10.4 SEQUUS Amended and Restated Employee Stock Purchase Plan (2) 10.5 SEQUUS Equity Incentive Plan (2) 23.1 Consent of General Counsel of ALZA (filed as part of Exhibit 5) 23.2 Consent of Ernst & Young LLP, Independent Auditors 24 Power of Attorney (pages II-5 and II-6)
- --------------------------------------- (1) Incorporated by reference to SEQUUS's Annual Report on Form 10-K (file number 000-15847) filed April 1, 1996. (2) Incorporated by reference to SEQUUS's Registration Statement on Form S-8 (file number 333-45697) filed on February 5, 1998. II-7 EX-5 2 OPINION OF LEGAL COUNSEL EXHIBIT 5 March 17, 1999 ALZA Corporation 950 Page Mill Road P.O. Box 10950 Palo Alto, CA 94303-0802 Re: Registration Statement on Form S-8 Ladies and Gentlemen: I am delivering this opinion in my capacity as Senior Vice President and General Counsel of ALZA Corporation, a Delaware corporation ("ALZA"), in connection with the Registration Statement on Form S-8 (the "Registration Statement") which ALZA proposes to file with the Securities and Exchange Commission on or about March 19, 1999, for the purpose of registering under the Securities Act of 1933, as amended, an aggregate of 1,550,000 shares of its Common Stock, par value $.01 (the "Shares"), issuable under the SEQUUS 1987 Employee Stock Option Plan, SEQUUS 1987 Consultant Stock Option Plan, SEQUUS 1990 Director Stock Option Plan, SEQUUS Equity Incentive Plan and the SEQUUS Amended And Restated Employee Stock Purchase Plan (collectively, the "Plans"). In connection with this opinion, I have assumed the authenticity of all records, documents and instruments submitted to me as originals, the genuineness of all signatures, the legal capacity of natural persons and the conformity to the originals, of all records, documents and instruments submitted to me as copies. I have based my opinion upon my review of such records, documents and instruments as I have deemed appropriate to render this opinion. This opinion is limited to the General Corporation Law of the State of Delaware. I disclaim any opinion as to any other statute, rule, regulation, ordinance, order or other promulgation of any other jurisdiction or any regional or local governmental body. Based upon the foregoing and my examination of such questions of law as I have deemed necessary or appropriate for the purpose of this opinion, and assuming that (i) the Registration Statement becomes and remains effective during the period when the Shares are offered and sold, (ii) appropriate certificates evidencing the Shares will be executed and delivered upon the issuance of the Shares, (iii) the full consideration stated in the Plans is paid for each Share, and (iv) all applicable securities laws are complied with, it is my opinion that when issued by ALZA after payment therefor in the manner provided in the Plans, the Shares covered by the Registration Statement will be legally issued, fully paid and non-assessable. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Peter D. Staple ------------------- Peter D. Staple Senior Vice President and General Counsel EX-23.2 3 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) of ALZA Corporation pertaining to the 1987 Employee Stock Option Plan, the 1987 Consultant Stock Option Plan, the 1990 Director Stock Option and Equity Incentive Plan, the Equity Incentive Plan and the Amended and Restated Employee Stock Purchase Plan of SEQUUS Pharmaceuticals, Inc. of our report dated February 13, 1998, with respect to the consolidated financial statements of ALZA Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Palo Alto, California March 19, 1999 -----END PRIVACY-ENHANCED MESSAGE-----