As filed with the Securities and Exchange Commission on March 10, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
INAMED CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 59-0920629
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5540 Ekwill Street, Suite D
Santa Barbara, California 93111
(Address, including zip code, of Principal Executive Offices)
Officer and Director Warrant Plan
(Full title of the plan)
David E. Bamberger, Esq.
Senior Vice President, General Counsel and Secretary
Inamed Corporation
11 Penn Plaza, Suite 946
New York, New York 10001
(212) 273-3430
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies of all communications to:
Ronald C. Barusch, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
1440 New York Avenue, N.W.
Washington, DC 20005-2111
(202) 371-7000
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each class of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate offering Amount of
be registered registered per share (2) price (1) registration fee
- ---------------------- ------------ ---------------- ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,165,000 shares $42.09375 $49,039,218.75 $12,947
$0.01 per share
</TABLE>
(1) The proposed maximum aggregate offering price listed above has been
determined pursuant to Rule 457(g) under the Securities Act of 1933, as
amended, and represents the number of shares offered pursuant to warrants
multiplied by a per share price of $42.09375, the average price of Inamed
Corporation Common Stock on the Nasdaq National Market on March 3, 2000.
(2) Estimated solely for purposes of calculating the registration fee and
pursuant to Rule 457(c) of the Securities Act based on the average of the
high and low sale price of the Common Stock on the Nasdaq National Market
on March 3, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by the Registrant with
the Securities and Exchange Commission pursuant to the Securities Act and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as applicable,
are incorporated by reference herein and shall be deemed to be a part hereof:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
2. The description of the Registrant's Capital Stock contained in
the registration statement filed pursuant to Section 12 of the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
3. All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act.
All documents, filed with the Commission 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 in this registration statement and made a part hereof
from their respective dates of filing (such documents, and the documents
enumerated above, being hereinafter referred to as "Incorporated Documents");
provided, however, that the documents enumerated above or subsequently filed by
the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act in each year during which the offering made by this registration statement
is in effect prior to the filing with the Commission of the Registrant's Annual
Report on Form 10-K covering such year shall not be Incorporated Documents or be
incorporated by reference in this registration statement or be a part hereof
from and after the filing of such Annual Report on Form 10-K.
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
Not applicable.
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<PAGE>
Item 6. Indemnification of Directors And Officers.
Section 145 of the Delaware General Corporation Law, inter alia,
generally empowers a Delaware Corporation to 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 by reason of the fact that such person is
or was a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interest of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Similar indemnity is
authorized for such person against expense (including attorneys' fees) actually
and reasonably incurred in connection with the defense or settlement of any such
threatened, pending or completed action or suit if such person acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and provided further that (unless a court of
competent jurisdiction otherwise provides) such person shall not have been
adjudged liable to the corporation. Any such indemnification may be made only as
authorized in each specific case upon a determination by the shareholders or
disinterested directors or by independent legal counsel in a written opinion
that indemnification is proper because the indemnitee has met the applicable
standard of conduct.
Section 145 further authorized a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent 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 enterprise,
against any liability asserted against him, and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145.
The Registrant's bylaws provide a right to indemnification to the full
extent permitted by law for expenses, attorney's fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by any director or
officer whether or not the indemnified liability arises or arose from any
threatened, pending or completed proceeding by or in the Registrant's right by
reason of the fact that the director or officer is or was serving as the
Registrant's director or officer at the Registrant's request, as a director,
officer, partner, fiduciary or trustee of another corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise, unless a court
finally determines that the director or officer did not act in good faith in a
manner reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action, that the director or
officer has no reasonable cause to believe that his conduct was unlawful. The
Registrant's bylaws provide for the advancement of expenses to an indemnified
party upon receipt of an undertaking by the party to repay those amounts if it
is finally determined that the indemnified party is not entitled to
indemnification. The Registrant's bylaws authorize the Registrant to take steps
to ensure that all persons entitled to indemnification are properly indemnified,
including, if the board of directors so determines, purchasing and maintaining
insurance.
The Registrant's Restated Certificate of Incorporation provides that
director of the Registrant will be personally liable to the Registrant or its
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<PAGE>
stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability for (i) any breach of that person's duty of loyalty; (ii)
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of laws; (iii) the payment of unlawful dividends and certain
other actions prohibited by Delaware corporation law; and (iv) any transaction
resulting in receipt by that person of an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index on page II-8.
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 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. 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 242(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective 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) of this
section do not apply if the information required to be included in a
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<PAGE>
post-effective amendment by those paragraphs is contained in periodic reports
filed 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 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; 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 of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
*(h) Insofar as indemnification for liabilities arising under the
Securities Act or 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
* Paragraph references correspond to those of Regulation S-K, Item 512.
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<PAGE>
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 New York and the State of New York, on this 10th day
of March, 2000.
INAMED CORPORATION
By: /s/ David E. Bamberger
-----------------------------------
Name: David E. Bamberger
Title: Senior Vice President,
General Counsel and Secretary
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<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby severally constitutes
and appoints Ilan K. Reich and David E. Bamberger, and each of them acting
singly, as his or her true and lawful attorney-in-fact agent, with full and
several power of substitution and resubstitution, to sign for him or her and in
his or her name, place and stead in any and all capacities indicated below, the
registration statement on Form S-8 filed herewith and any and all pre-effective
and post-effective amendments and supplements to the said registration
statement, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorney-in-fact and agent, full power and authority to do and perform each
and every act and thing requisite and necessary fully to all intents and
purposes as he or she might or could do in person hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her 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 date indicated below.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Richard G. Babbitt Chairman of the Board of Directors March 8, 2000
- ------------------------------- and Chief Executive Officer
Richard G. Babbitt
/s/ Ilan K. Reich Director and President March 8, 2000
- -------------------------------
Ilan K. Reich
/s/ James E. Bolin Director March 8, 2000
- -------------------------------
James E. Bolin
/s/ Malcolm R. Currie, Ph.D. Director March 8, 2000
- -------------------------------
Malcolm R. Currie, Ph.D.
/s/ John F. Doyle Director March 8, 2000
- -------------------------------
John F. Doyle
/s/ Mitchell S. Rosenthal, M.D. Director March 8, 2000
- -------------------------------
Mitchell S. Rosenthal, M.D.
/s/ David A. Tepper Director March 8, 2000
- -------------------------------
David A. Tepper
/s/ John E. Williams, M.D. Director March 8, 2000
- -------------------------------
John E. Williams, M.D.
/s/ Michael J. Doty Senior Vice President March 8, 2000
- ------------------------------- And Chief Financial Officer
Michael J. Doty
</TABLE>
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<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP as to
the legality of the Company's Common Stock.
23(a) Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in the Opinion filed as Exhibit 5 hereto).
23(b) Consent of BDO Seidman, LLP, independent certified public
accountants.
24 Power of Attorney (set forth on the signature page hereof).
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EXHIBIT 5
[SASM&F Letterhead]
March 10, 2000
Inamed Corporation
5540 Ekwill Street, Suite D
Santa Barbara, California 93111
Re: Inamed Corporation
Registration on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to Inamed Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended (the "Securities Act"), of 1,165,000 shares
(the "Shares") of the Company's Common Stock, par value $0.01 per share (the
"Common Stock"), to be issued pursuant to or reserved for issuance under the
officer and director warrant plan pursuant to the agreements dated November 25,
1997, March 31, 1998 and March 8, 2000 (the "Warrant Plan").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of (i) the Registration
Statement on Form S-8 as filed with the Securities and Exchange Commission (the
"Commission") on March 10, 2000 under the Securities Act; (ii) the Warrant Plan;
(iii) the Restated Certificate of Incorporation of the Company, as presently in
effect; (iv) the By-Laws of the Company, as presently in effect; (v) resolutions
of the Board of Directors of the Company relating to the Warrant Plan and the
issuance of the Shares and related matters; and (vi) a specimen certificate
representing the Common Stock. We have also examined originals or copies,
certified or otherwise identified to our satisfaction, of such records of the
Company and such agreements, certificates of public officials, certificates of
officers or other representatives of the Company and others, and such other
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
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<PAGE>
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified, conformed or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of documents executed or to be executed by parties other than the
Company, we have assumed that such parties had or will have the power, corporate
or other, to enter into and perform all obligations thereunder and have also
assumed the due authorization by all requisite action, corporate or other, and
the execution and delivery by such parties of such documents and the validity
and binding effect thereof. As to any facts material to the opinions expressed
herein which we have not independently established or verified, we have relied
upon statements and representations of officers and other representatives of the
Company and others.
Members of our firm are admitted to the bar in the State of Delaware.
Based upon and subject to the foregoing, we are of the opinion that
when (i) the Registration Statement becomes effective; and (ii) certificates
representing the Shares in the form of the specimen certificates examined by us
have been manually signed by an authorized officer of the transfer agent and
registrar for the Common Stock and registered by such transfer agent and
registrar, and delivered to and paid for by the Warrant Plan participant at a
price per share not less than the price per share as contemplated by the Warrant
Plan and in accordance with the terms and conditions of the Warrant Plan, the
issuance and sale of the Shares will have been duly authorized, and the Shares
will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are included in the category of persons whose consent is
required under Section 7 of the Securities Act or the rules and regulations of
the Commission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
--------------------------------------------
Skadden, Arps, Slate, Meagher & Flom LLP
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EXHIBIT 23(b)
CONSENT OF INDEPENDENT
CERTIFIED PUBLIC ACCOUNTANTS
Inamed Corporation and subsidiaries
New York, New York
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated February
12, 1999, except for note 14, which is as of March 3, 1999, relating to the
consolidated financial statements and schedule of Inamed Corporation and
subsidiaries appearing in the Company's Annual Report on Form 10-K for the year
ended December 31, 1998.
/s/ BDO Seidman, LLP
- --------------------------
BDO SEIDMAN, LLP
New York, New York
March 10, 2000
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