S-8 1 appas8101106.txt FORM S-8 As filed with the Securities and Exchange Commission on October 11, 2006 Registration No. 333-------- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 A.P. Pharma, Inc. ----------------- (Exact Name of Registrant as Specified in Its Charter) Delaware 94-2875566 ------------------------------- ------------------- (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 123 Saginaw Drive, Redwood City, California 94063 ------------------------------------------------- (Address of Principal Executive Offices) 2002 Equity Incentive Plan -------------------------- 1997 Employee Stock Purchase Plan --------------------------------- (Full Title of the Plan) Gregory H. Turnbull President and Chief Executive Officer A.P. Pharma, Inc. 123 Saginaw Drive Redwood City, California 94063 ------------------------------- (Name and Address of Agent for Service) (650) 366-2626 -------------- (Telephone Number, Including Area Code, of Agent for Service) Copy to: Richard A. Peers, Esq. Heller Ehrman LLP 275 Middlefield Road Menlo Park, California 94025-3506 (650) 324-7000 -------------- CALCULATION OF REGISTRATION FEE
================================================================ Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price per Offering Registration Registered Registered(1) Share (2) Price Fee ---------------------------------------------------------------- Common Stock, par value $0.01 550,000 $1.18 $649,000 $76.39 ================================================================ (1) Represents 400,000 additional shares issuable upon exercise of stock options to be granted under Registrant's 2002 Equity Incentive Plan and 150,000 additional shares issuable upon exercise of purchase rights granted under the Registrant's 1997 Employee Stock Purchase Plan, including such additional number of shares as may be required by reason of the anti-dilution provisions of such plans. (2) Estimated solely for the purpose of computing the amount of registration fee pursuant to Rule 457(c) under the Securities Act, as amended, based on the average of the high and low prices of the Registrant's Common Stock reported on the Nasdaq National Market on October 9, 2006.
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT The shares being registered herein are 400,000 additional shares of common stock authorized to be issued under the Registrant's 2002 Equity Incentive Plan and 150,000 additional shares of common stock authorized to be issued under the Registrant's 1997 Employee Stock Purchase Plan. Pursuant to Instruction E of Form S-8, the contents of the S-8 Registration Statements (File Numbers 333-35151 and 333-118546) with respect to the Registrant's 2002 Equity Incentive Plan and the contents of the S-8 Registration Statements (File Numbers 333-90428 and 333-118546) with respect to the Registrant's 1997 Employee Stock Purchase Plan are hereby incorporated by reference. Item 3. Incorporation of Documents by Reference The following documents filed or to be filed with the Securities and Exchange Commission (the "Commission") by the Registrant are incorporated by reference in this Registration Statement: (a) The Registrant's Annual Report on Form 10-K for the year ended December 31, 2005; (b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2006 and June 30, 2006; (c) The Registrant's Current Reports on Forms 8-K and 8-K/A filed with the Commission on January 18, 2006, January 20, 2006, February 1, 2006, February 6, 2006, April 5, 2006, June 6, 2006, August 14, 2006, August 24, 2006, August 29, 2006, September 28, 2006, October 3, 2006 and October 10, 2006; (d) The description of the Registrant's Common Stock contained in the registration statement on Form 8-A filed with the Commission on August 7, 1987 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); and (e) All 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 hereby have been sold or which deregisters all securities then remaining unsold. Item 8. Exhibits 4.1 2002 Equity Incentive Plan (included in the Registrant's Registration Statement on Form S-8 ("S-8"), File Number 333- 90428, incorporated herein by reference) 4.2 1997 Employee Stock Purchase Plan (included in the Registrant's S-8, File Number 333-35151, incorporated herein by reference) 5.1 Opinion of Heller Ehrman LLP 23.1 Consent of Independent Registered Public Accounting Firm 23.2 Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1) 24.1 Power of Attorney (see page II-2) 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 Redwood City, State of California, on this 11th day of October, 2006. A.P. PHARMA, INC. By: /s/ Gregory H. Turnbull ------------------------ Gregory H. Turnbull President and Chief Executive Officer POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Gregory H. Turnbull and Stephen C. Whiteford, or either of them, with full power of substitution, such person's true and lawful attorneys-in- fact and agents for such person in such person's name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the 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 in order to effectuate the same as fully, to all intents and purposes, as he or such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date -------------------------------------------------------------------- /S/ Gregory H. Turnbull President, Chief October 11, 2006 -------------------------- Executive Officer, and ---------------- Gregory H. Turnbull Director (Principal Executive Officer) /S/ Stephen C. Whiteford Vice President, October 11, 2006 -------------------------- Finance and Chief ---------------- Stephen C. Whiteford Financial Officer (Principal Financial and Accounting Officer) /S/ Paul Goddard Chairman of the October 11, 2006 -------------------------- Board of Directors ---------------- Paul Goddard /S/ Peter Riepenhausen Director October 11, 2006 -------------------------- ---------------- Peter Riepenhausen /S/ Toby Rosenblatt Director October 11, 2006 -------------------------- ---------------- Toby Rosenblatt /s/ Arthur Taylor Director October 11, 2006 -------------------------- ---------------- Arthur Taylor /S/ Dennis Winger Director October 11, 2006 -------------------------- ---------------- Dennis Winger /S/ Robert Zerbe Director October 11, 2006 -------------------------- ---------------- Robert Zerbe
INDEX TO EXHIBITS ----------------- Item No. Description of Item ------- ------------------- 4.1 2002 Equity Incentive Plan (included in the Registrant's S-8, File Number 333-90428, incorporated herein by reference) 4.2 1997 Employee Stock Purchase Plan (included in the Registrant's S-8, File Number 333-35151, incorporated herein by reference) 5.1 Opinion of Heller Ehrman LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Heller Ehrman LLP (filed as part of Exhibit 5.1) 24.1 Power of Attorney (see page II-2)