Registration No. 333-_______________.
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT
under
The Securities Act of 1933
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Mylan Laboratories Inc.
(Exact Name of Issuer as specified in its charter)
Pennsylvania 25-1211621
(State or other jurisdiction of
incorporation or organization) (I.R.S. Employer Identification No.)
1030 Century Building
130 Seventh Street
Pittsburgh, Pennsylvania 15222
(Address of principal executive offices) (Zip Code)
Penederm Incorporated
1994 Nonemployee Directors Stock Option Plan
(Full Title of Plan)
Milan Puskar
Chief Executive Officer
1030 Century Building
130 Seventh Street
Pittsburgh, Pennsylvania 15222
(Name and address of agent for service)
(412) 232-0100
(Telephone number, including area code, of agent for service)
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Copy to:
David G. Edwards, Esquire
Doepken Keevican & Weiss
58th Floor, USX Tower
600 Grant Street
Pittsburgh, Pennsylvania 15219
CALCULATION OF REGISTRATION FEE
<TABLE>
<S> <C> <C> <C> <C> <C>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Registration Fee (1)
per Share (1) Offering Price (1)
Common Stock $.01 par 176,800 $30.41 $5,376,488 $1,586.06
value
</TABLE>
(1) Estimated for the purpose of calculating the registration fee pursuant to
Rule 457(c) for the shares registered hereunder, being the average ($30.41) of
the high ($31.31) and low ($29.50) prices for the Registrant's Common Stock on
the New York Stock Exchange on September 30, 1998.
In accordance with Rule 464 under the Securities Act of 1933,
as amended, this Registration Statement is effective automatically on the date
of filing with the Securities and Exchange Commission.
In addition, pursuant to Rule 416(c) under the Securities Act
of 1933, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan described
herein.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information
Mylan Laboratories Inc. will send to plan participants the information
required by Part I of this Registration Statement as specified by Rule 428(b)(1)
of the Securities Act of 1933. We are not required to file this information with
the Securities and Exchange Commission, nor have we done so. This information
and the documents incorporated into this Registration Statement under Item 3 of
Part II of this Form S-8, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act. We will send copies of the
documents incorporated by reference to plan participants, without charge, upon
written or oral request made to Patricia A. Sunseri, Vice President-Investor and
Public Relations, 130 Seventh Street, 1030 Century Building, Pittsburgh,
Pennsylvania 15222, telephone (412) 232-0100.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We have incorporated by reference in this Prospectus the documents
listed below. We have filed these documents with the Securities and Exchange
Commission under the Securities Exchange Act of 1934.
1. Annual Report on Form 10-K for the year ended March 31, 1998.
2. Quarterly Report on Form 10-Q for the quarter ended June 30, 1998.
3. Current Report on Form 8-K filed June 30, 1998.
4. Current Report on Form 8-K/A filed August 26, 1998.
5. The description of the Registrant's Common Stock included in
the Registration Statement on Form 8-A filed April 3, 1986.
All of the documents that we subsequently file with the Securities and
Exchange Commission under Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 will be deemed to be incorporated by reference into this
Registration Statement and will become a part of this Registration Statement,
unless we have earlier filed a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Doepken, Keevican &Weiss Professional Corporation, Pittsburgh,
Pennsylvania has given its opinion as to the legality of the Common Stock being
offered. Robert W. Smiley, who is of counsel to Doepken Keevican & Weiss, also
serves as a member of our Board and as our Secretary and General Counsel.
Item 6. Indemnification of Directors and Officers
In accordance with the Pennsylvania Business Corporation Law, our
By-Laws provide that none of our directors will be personally liable for
monetary damages for taking or failing to take any action unless the director
has breached or failed to perform the duties required under Pennsylvania law and
this breach or failure to perform constitutes self-dealing, willful misconduct
or recklessness.
As permitted under Pennsylvania law, our By-Laws provide that we will
indemnify our directors and officers under certain circumstances for expenses,
judgments, fines or settlements incurred in connection with suits and other
legal proceedings. Pennsylvania law allows indemnification in cases where the
person "acted in good faith and in a
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manner he reasonably believed to be in, or not opposed to the best interests of
the corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
4.1 Penederm Incorporated 1994 Nonemployee Directors Stock Option Plan.
4.2 Amended and Restated Articles of Incorporation of the Registrant
(included as an exhibit in the Form S-8 of the Registrant filed with
the Commission on December 23, 1997, Registration No. 333-43081 and
incorporated herein by reference).
4.3 Bylaws of the Registrant, as amended to date (included as an exhibit in
the Form S-8 of the Registrant filed with the Commission on December
23, 1997, Registration No. 333-43081 and incorporated herein by
reference).
5.1 Opinion of Doepken Keevican & Weiss Professional Corporation.
23.1 Consent of Doepken Keevican & Weiss Professional Corporation (included
in the opinion filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP relating to its report regarding Mylan
Laboratories Inc.
23.3 Consent of Deloitte & Touche LLP relating to its report regarding Somerset
Pharmaceuticals, Inc.
24.1 Powers of Attorney (included on signature page of the Registration
Statement).
Item 9. Undertakings.
The 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 this 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 this registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this registration statement or
any material change to such information in this registration statement.
Provided, however, that paragraphs (1)(i) and (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 with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
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(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.
(3) 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.
(4) 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.
(5) 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 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 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.
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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 Pittsburgh, State of Pennsylvania, on October 2,
1998.
Mylan Laboratories Inc.
(Registrant)
By: /s/ Milan Puskar
Milan Puskar, Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
the undersigned, being the members of the Compensation Committee, have duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Pittsburgh, State of
Pennsylvania, on October 2, 1998.
Mylan Laboratories Inc. Compensation Committee
/s/ Laurence S. DeLynn
Laurence S. DeLynn, Committee Member
/s/ John C. Gaisford
John C. Gaisford, M.D., Committee Member
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Milan Puskar and Patricia A. Sunseri and
each of them, with full power to act without the other, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities to sign any
or all amendments to this Registration Statement, including post-effective
amendments, and to file the same with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents of any of them, or any substitute or substitutes,
lawfully do or cause to be done by virtue hereof.
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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.
SIGNATURE TITLE DATE
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/s/ Milan Puskar Chairman, Chief Executive October 2, 1998
Milan Puskar and President (principal
executive officer) and Director
/s/ Dana G. Barnett Executive Vice President
Dana G. Barnett and Director October 2, 1998
Laurence S. DeLynn Director October 2, 1998
Laurence S. DeLynn
/s/ Robert W. Smiley Secretary and Director October 2, 1998
Robert W. Smiley
/s/ Patricia A. Sunseri Vice President and Director October 2, 1998
Patricia A. Sunseri
/s/ John C. Gaisford Director October 2, 1998
John C. Gaisford, M.D.
C.B. Todd Senior Vice President
C.B. Todd and Director October 2, 1998
/s/ Donald C. Schilling Vice President of Finance
Donald C. Schilling (principal financial officer) October 2, 1998
/s/ Frank DeGeorge Director of Accounting
Frank DeGeorge and Taxation (principal
accounting officer) October 2, 1998
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Index to Exhibits
4.1 Penederm Incorporated 1994 Nonemployee Directors Stock Option Plan.
4.2 Amended and Restated Articles of Incorporation of the Registrant
(included as an exhibit in the Form S-8 of the Registrant filed with the
Commission on December 23, 1997, Registration No. 333-43081 and
incorporated herein by reference).
4.3 Bylaws of the Registrant, as amended to date (included as an exhibit in
the Form S-8 of the Registrant filed with the Commission on December 23,
1997, Registration No. 333-43081 and incorporated herein by reference).
5.1 Opinion of Doepken Keevican & Weiss Professional Corporation.
23.1 Consent of Doepken Keevican & Weiss Professional Corporation (included
in the opinion filed as Exhibit 5.1 to this Registration Statement).
23.2 Consent of Deloitte & Touche LLP relating to its report regarding Mylan
Laboratories Inc.
23.3 Consent of Deloitte & Touche LLP relating to its report regarding
Somerset Pharmaceuticals, Inc.
24.1 Powers of Attorney (included on signature page of the Registration
Statement).
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EXHIBIT 4.1
PENEDERM INCORPORATED
1994 NONEMPLOYEE DIRECTORS
STOCK OPTION PLAN
1. Purpose.
The purpose of this Plan is to offer Nonemployee Directors of
Penederm Incorporated an opportunity to acquire a proprietary interest in the
success of the Company, or to increase such interest, by purchasing shares of
the Company's Common Stock. This Plan provides for the grant of Options to
purchase Shares. Options granted hereunder shall be "Nonstatutory Options," and
shall not include "incentive stock options" intended to qualify for treatment
under Sections 421 and 422 of the Internal Revenue Code of 1986, as amended.
2. Definitions.
As used herein, the following definitions shall apply:
(a) "Administrator" shall mean the entity, either the Board or
the committee of the Board, responsible for administering this Plan, as provided
in Section 3.
(b) "Affiliate" means a parent or subsidiary corporation as
defined in the applicable provisions(currently, Sections 424(e) and (f),
respectively) of the Code.
(c) "Board" shall mean the Board of Directors of the Company,
as constituted from time to time.
(d) "Change in Control" shall mean the occurrence of any one
of the following:
(i) any "person", as such term is used in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company, an Affiliate, or a Company employee
benefit plan, including any trustee of such plan acting as trustee) is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company representing 20% or
more of the combined voting power of the Company's then outstanding securities;
(ii) the solicitation of proxies (within the meaning of Rule 14a- 1(k)
under the Exchange Act and any successor rule) with respect to the election of
any director of the Company where such solicitation is for any candidate who is
not a candidate proposed by a majority of the Board in office prior to the time
of such election; or
(iii) the dissolution or liquidation (partial or total) of the Company
or a sale of assets involving 30% or more of the assets of the Company, or any
merger or reorganization of the Company, whether or not another entity is the
survivor, or other transaction pursuant to which the holders, as a group, of all
of the shares of the Company outstanding prior to the transaction hold, as a
group, less than 70% of the shares of the Company outstanding after the
transaction.
(e) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute.
(f) "Company" shall mean Penederm Incorporated, a California
corporation.
(g) "Common Stock" shall mean the Common Stock of the Company.
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(h) "Disability" means permanent and total disability as
determined by the Administrator in accordance with the standards set forth in
Section 22(e)(3) of the Code.
(i) "Exchange Act" means the Securities Exchange Act of 1934,
as amended from time to time, and any successor statute.
(j) "Expiration Date" shall mean the last day of the term of
an Option established under Section 6(c).
(k) "Fair Market Value" means as of any given date (a) the
closing price of the Common Stock on the Nasdaq National Market as reported in
the Wall Street Journal; or (b) if the Common Stock is no longer quoted on the
Nasdaq National Market but is listed on an established stock exchange or quoted
on any other established interdealer quotation system, the closing price for the
Common Stock on such exchange or system, as reported in the Wall Street Journal.
(l) "Nonemployee Director" shall mean any person who is a
member of the Board but is not an employee of the Company or any Affiliate of
the Company and has not been an employee of the Company or any Affiliate of the
Company at any time during the preceding twelve months. Service as a director
does not in itself constitute employment for purposes of this definition.
(m) "Option" shall mean a stock option granted pursuant to
this Plan. Each Option shall be a nonstatutory option not intended to qualify as
an incentive stock option within the meaning of Section 422 of the Code.
(n) "Option Agreement" shall mean the written agreement
described in Section 6 evidencing the grant of an Option to a Nonemployee
Director and containing the terms, conditions and restrictions pertaining to
such Option.
(o) "Optionee" shall mean a Nonemployee Director who holds an
Option.
(p) "Plan" shall mean this Penederm Incorporated 1994
Nonemployee Directors Stock Option Plan, as it may be amended from time to time.
(q) "Section" unless the context clearly indicates otherwise,
shall refer to a Section of this Plan.
(r) "Shares" shall mean the shares of Common Stock subject to
an Option granted under this Plan.
(s) "Tax Date" means the date defined in Section 7(c).
(t) "Termination" means, for purposes of the Plan, with
respect to an Optionee, that the Optionee has ceased to be, for any reason, a
director of the Company.
(u) "Window Period" means any 10-day period beginning on the
third business day following the date of release for publication of the
Company's quarterly or annual summary statements of earnings or such other
period as is specified in Rule 16b-3(c) under the Exchange Act, as such rule may
be amended from time to time, or any successor to such rule.
3. Administration.
(a) Administrator. The Plan shall be administered by the Board
or, upon delegation by the Board, by a committee consisting of not less than two
directors (in either case, the "Administrator"). The Administrator shall have no
authority, discretion or power to select the Nonemployee Directors who will
receive Options hereunder
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or to set the number of shares to be covered by each Option granted hereunder,
the exercise price of such Option, the timing of the grant of such Option or the
period within which such Option may be exercised. In connection with the
administration of the Plan, the Administrator shall have the powers possessed by
the Board. The Administrator may act only by a majority of its members. The
Administrator may delegate administrative duties to such employees of the
Company as it deems proper, so long as such delegation is not otherwise
prohibited by Rule 16b-3 under the Exchange Act. The Board at any time may
terminate the authority delegated to any committee of the Board pursuant to this
Section 3(a) and revest in the Board the administration of the Plan.
(b) Administrator Determinations Binding. Subject to the
limitations set forth in Section 3(a), the Administrator may adopt, alter and
repeal administrative rules, guidelines and practices governing the Plan as it
from time to time shall deem advisable, may interpret the terms and provisions
of the Plan, any Option and any Option Agreement and may otherwise supervise the
administration of the Plan. All decisions made by the Administrator under the
Plan shall be binding on all persons, including the Company and Optionees. No
member of the Administrator shall be liable for any action that he or she has in
good faith taken or failed to take with respect to this Plan or any Option.
4. Eligibility.
Only Nonemployee Directors may receive Options under this Plan.
5. Shares Subject to Plan.
(a) Aggregate Number. Subject to Section 9, the total number
of shares of Common Stock reserved and available for issuance pursuant to
Options under this Plan shall be 350,000 shares. Such shares may consist, in
whole or in part, of authorized and unissued shares or shares reacquired in
private transactions or open market purchases, but all shares issued under the
Plan regardless of source shall be counted against the 350,000 share limitation.
If any Option terminates or expires without being exercised in full, the shares
issuable under such Option shall again be available for issuance in connection
with other Options. If shares of Common Stock issued pursuant to an Option are
repurchased by the Company, such Common Stock shall not again be available for
issuance in connection with Options. To the extent the number of shares of
Common Stock issued pursuant to an Option is reduced to satisfy withholding tax
obligations, the number of shares withheld to satisfy the withholding tax
obligations shall not be available for later grant under the Plan.
(b) No Rights as a Shareholder. An Optionee shall have no
rights as a shareholder with respect to any Shares covered by his or her Option
until the issuance (as evidenced by the appropriate entry on the books of the
Company or its duly authorized transfer agent) of a stock certificate evidencing
such Shares. Subject to Section 9, no adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property),
distributions, or other rights for which the record date is prior to the date
the certificate is issued.
6. Grant of Options.
(a) Mandatory Initial Option Grants. Subject to the terms and
conditions of this Plan, if any person who is not, and has not been in the
preceding twelve months, an officer or employee of the Company and who has not
previously been a member of the Board is elected or appointed as a member of the
Board, then on the effective date of such appointment or election the Company
shall grant to such new Nonemployee Director an Option to purchase at an
exercise price equal to the Fair Market Value of such Shares on the date of such
option grant (i) 5,000 shares, if such person was elected or appointed to the
Board on or prior to March 4, 1996, or (ii) 7,500 shares if such person was
elected or appointed to the Board after March 4, 1996, or (iii) 10,000 shares if
such person was elected or appointed to the Board on or after June 16, 1997.
(b) Mandatory Annual Option Grants. Subject to the terms and
conditions of this Plan, (i) on the date of the first meeting of the Board
immediately following the annual meeting of shareholders of the Company (even if
held on the same day as the meeting of shareholders) commencing with the annual
meeting of shareholders held
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in 1994 and ending on March 4, 1996, the Company shall grant to each such
Nonemployee Director then in office (other than a Nonemployee director who
received a Grant under Section 6(a) in the previous six months) an Option to
purchase 5,000 Shares at an exercise price equal to the Fair Market Value of
such Shares on the date of such option grant, (ii) on the date of the first
meeting of the Board immediately following the annual meeting of stockholders of
the Company (even if held on the same day as the meeting of shareholders)
commencing with the annual meeting of shareholders held in 1996 and ending prior
to the annual meeting of shareholders held in 1997, the Company shall grant to
each such Nonemployee Director then in office (other than a Nonemployee Director
who received a Grant under Section 6(a) on or after the record date for such
annual meeting) an Option to purchase at an exercise price equal to the Fair
Market Value of such shares on the date of such option grant: (A) 7,500 shares
unless clause (B) below applies, or (B) 12,500 shares if such Grant is being
made at the 1996 annual meeting of shareholders and the Nonemployee Director did
not receive a grant under Section 6(a) or Section 6(b) since the record date of
the 1995 annual meeting of shareholders and (iii) on the date of the first
meeting of the Board immediately following the annual meeting of shareholders of
the Company (even if held on the same day as the meeting of shareholders)
commencing with the annual meeting of shareholders held in 1997, the Company
shall grant to each such Nonemployee Director then in office (other than a
Nonemployee Director who received a Grant under Section 6(a) on or after the
record date for such annual meeting) an option to purchase at an exercise price
equal to the Fair Market Value of such shares on the date of such option grant:
(x) 10,000 shares unless clause (y) below applies, or (y) 15,000 shares if such
Nonemployee Director is the Chairman of the Board of the Company.
(c) Terms; Vesting. Subject to the other provisions of this
Plan, each Option granted pursuant to this Plan shall be for a term of ten
years. Each Option granted under Section 6(a) and Section 6(b) shall become
exercisable with respect to 1/365th of the number of Shares covered by such
Option for each day which elapses after the date of grant, so that such Option
shall be fully exercisable on the first anniversary of the date such Option was
granted.
(d) Limitation on Other Grants. The Administrator shall have
no discretion to grant Options under this Plan other than as set forth in
Sections 6(a) and 6(b).
(e) Option Agreement. As soon as practicable after the grant
of an Option, the Optionee and the Company shall enter into a written Option
Agreement which specifies the date of grant, the number of Shares, the option
price, and the other terms and conditions applicable to the Option.
(f) Assignment or Transfer.
(i) All or any portion of any Option may be transferred by an Optionee
to (i) the spouse, children or grandchildren of the Optionee ("Immediate Family
Members"), (ii) a partnership in which such Immediate Family Members are the
only partners, or (iii) a trust or trusts for the exclusive benefit of such
Immediate Family Members, provided that (x) there may be no consideration for
such transfer, (y) the agreement pursuant to which such Options are transferred
must be in a form consistent with this Plan, and must expressly provide for
transferability in a manner consistent with this Section 6(f), and (z)
subsequent transfers of transferred Options shall be prohibited except those in
accordance with Section 6(f)(ii). Following transfer, any such Options shall
continue to be subject to the same terms and conditions as were applicable
immediately prior to transfer. The events of termination of Section 6(i) shall
continue to be applied with respect to the original Optionee, following which
the Options shall be exercisable by the transferee only to the extent, and for
the periods specified in Section 6(i). Neither the Company nor the Administrator
shall have any obligation to provide the transferee with notice of termination
of an Optionee.
(ii) Options shall be transferable only in accordance with Section
6(f)(i) or by will or the laws of descent and distribution.
(g) Limits on Exercise. Subject to the other provisions of
this Plan, an Option shall be exercisable in such amounts as are specified in
the Option Agreement.
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(h) Exercise Procedures. To the extent the right to purchase
Shares has accrued, Options may be exercised, in whole or in part, from time to
time, by written notice from the Optionee to the Company stating the number of
Shares being purchased, accompanied by payment of the exercise price for the
Shares, and other applicable amounts, as provided in Section 7.
(i) Termination. In the event of Termination, Options held at
the date of Termination (and only to the extent then exercisable) may be
exercised in whole or in part at any time within three months after the date of
Termination (but in no event after the Expiration Date), but not thereafter.
Notwithstanding the foregoing, if Termination is due to retirement or to death
or Disability, Options held at the date of Termination (and only to the extent
then exercisable) may be exercised in whole or in part by the Optionee in the
case of retirement or Disability, by the participant's guardian or legal
representative or by the person to whom the Option is transferred by will or the
laws of descent and distribution, at any time within two years from the date of
Termination (but in no event after the Expiration Date).
7. Pavement and Taxes upon Exercise of Options.
(a) Purchase Price. The purchase price of Shares issued under
this Plan shall be paid in full at the time an Option is exercised.
(b) Delivery of Purchase Price. Optionees may make all or any
portion of any payment due to the Company
(i) upon exercise of an Option, or
(ii) with respect to federal, state, local or foreign tax payable in
connection with the exercise of an Option, by delivery of (x) cash, (y) check,
or (z) a promissory note of the Optionee or shares of Common Stock so long as,
if applicable, such property constitutes valid consideration for the Common
Stock under, and otherwise complies with, applicable law. No promissory note
under the Plan shall have a term (including extensions) of more than five years
or shall be of a principal amount exceeding 90% of the purchase price paid by
the borrower. Exercise of an Option may be made pursuant to a "cashless
exercise/sale" procedure pursuant to which funds to pay for exercise of the
Option are delivered to the Company by a broker upon receipt of stock
certificates from the Company, or pursuant to which Optionees obtain margin
loans from brokers to fund the exercise of the Option.
(c) Tax Withholding. The Optionee shall pay to the Company in
cash, promptly upon exercise of an Option or, if later, the date that the amount
of such obligations becomes determinable (in either case, the "Tax Date"), all
applicable federal, state, local and foreign withholding taxes that the
Administrator, in its discretion, determines to result upon exercise of an
Option or from a transfer or other disposition of shares of Common Stock
acquired upon exercise. of an Option or otherwise related to an Option or shares
of Common Stock acquired in connection with an Option.
A person who has exercised an Option may make an election (i)
to deliver to the Company a promissory note of the Optionee on the terms set
forth in Section 7(b), (ii) to tender to the Company previously-owned shares of
Common Stock held for at least six months, or (iii) to have shares of Common
Stock to be obtained upon exercise of the Option withheld by the Company on
behalf of the Optionee, to pay the amount of tax that the Administrator, in its
discretion, determines to be required to be withheld by the Company. Any
election pursuant to clause (iii) above by a Optionee subject to Section 16 of
the Exchange Act shall be subject to the following limitations: (1) such
election must be made at least six months before the Tax Date and shall be
irrevocable; or (2) such election must be made in (or made earlier to take
effect in) any Window Period (and the withholding of the shares of Common Stock
shall take place during such Window Period) and shall be subject to approval by
the Board, which approval may be given any time after such election has been
made, and the Option must be held at least six months prior to the Tax Date;
provided, that, the election referenced in clause (2) above may not be made
unless (A) such election. is consistent with Rule 16b-3(c)(2)(ii) under the
Exchange Act, and (B) the Company has been subject to the reporting requirements
11
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of Section 13(a) of the Exchange Act for at least one year and has filed all
reports and statements required to be filed pursuant to that section for that
year. The right to so withhold shares of Common Stock shall relate separately to
each Option.
Any shares tendered to or withheld by the Company will be valued at
Fair Market Value on such date. The value of the shares of Common Stock tendered
or withheld may not exceed the required federal, state, local and foreign
withholding tax obligations as computed by the Company.
8. Use of Proceeds.
Proceeds from the sale of Shares pursuant to this Plan shall
be used for general corporate purposes.
9. Adjustment of Shares.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split or other change in corporate
structure affecting the Common Stock, appropriate adjustments shall be made by
the Administrator in the aggregate number and kind of shares of Stock reserved
for issuance under the Plan and in the number, kind and exercise price of shares
subject to outstanding Options; provided, however, that the number of shares
subject to any Option shall always be a whole number.
10. Effect of Change in Control.
In the event of a "Change in Control," any Options outstanding
as of the date such Change in Control is determined to have occurred and not
then exercisable and vested shall become fully exercisable and vested.
11. No Right to Directorship.
Neither this Plan nor any Option granted hereunder shall
confer upon any Optionee any right with respect to continuation of the
Optionee's membership on the Board or shall interfere in any way with provisions
in the Company's Articles of Incorporation and By-Laws relating to the election,
appointment, terms of office, and removal of members of the Board.
12. Legal Requirements.
The Company shall not be obligated to offer or sell any Shares
upon exercise of any Option unless the Shares are at that time effectively
registered or exempt from registration under the federal securities laws and the
offer and sale of the Shares are otherwise in compliance with all applicable
securities laws and the regulations of any stock exchange on which the Company's
securities may then be listed. The Company shall have no obligation to register
the securities covered by this Plan under the federal securities laws or take
any other steps as may be necessary to enable the securities covered by this
Plan to be offered and sold under federal or other securities laws. Upon
exercising all or any portion of an Option, an Optionee may be required to
furnish representations or undertakings deemed appropriate by the Company to
enable the offer and sale of the Shares or subsequent transfers of any interest
in the Shares to comply with applicable securities laws. Certificates evidencing
Shares acquired upon exercise of Options shall bear any legend required by, or
useful for purposes of compliance with, applicable securities laws, this Plan or
the Option Agreements.
13. Duration and Amendments.
(a) Duration. This Plan shall become effective upon adoption
by the Board provided, however, that no Option shall be exercisable unless and
until written consent of the shareholders of the Company, or approval of
shareholders of the Company voting at a validly called shareholders' meeting, is
obtained within 12 months after adoption by the Board. If such shareholder
approval is not obtained within such time, Options granted hereunder shall
terminate and be of no force and effect from and after expiration of such
12-month period.
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(b) Amendment and Termination. The Board may amend, alter or
discontinue the Plan or any Option, but no amendment, alteration or
discontinuance shall be made which would impair the rights of an Optionee under
an outstanding Option without the Optionee's consent. In addition, the Board may
not amend or alter the Plan without the approval of shareholders of the Company
entitled to vote at a duly held shareholders' meeting or by an action by written
consent and, if at a meeting, a quorum of the voting power of the Company is
represented in person or by proxy, where such amendment or alteration would,
except as expressly provided in the Plan, increase the total number of shares
reserved for issuance pursuant to Options under the Plan or in such other
circumstances as the Board deems appropriate to comply with Rule 16b-3 under the
Exchange Act or otherwise. Notwithstanding any other provision of this Section
12(b), the provisions of the Plan governing (A) who is granted Options, (B) the
number of Shares to be covered by each Option, (C) the exercise price of each
Option, (D) the timing of the grant of each Option, or (E) the period within
which each Option may be exercised, shall not be amended more than once every
six months, other than to comport with changes in the Code or the rules
thereunder or the Employee Retirement Income Security Act of 1974, as amended,
or the rules thereunder.
(c) Effect of Amendment or Termination. No Shares shall be
issued or sold under this Plan after the termination hereof, except upon
exercise of an Option granted before termination. Termination or amendment of
this Plan shall not affect any Shares previously issued and sold or any Option
previously granted under this Plan.
14. Rule 16b-3.
With respect to persons subject to Section 16 of the Exchange
Act, transactions under this Plan are intended to comply with the applicable
conditions of Rule 16b-3 under the Exchange Act. To the extent any provision of
this Plan or action by the Administrator fails to so comply, it shall be
adjusted to comply with Rule 16b-3, to the extent permitted by law and deemed
advisable by the Administrator. It shall be the responsibility of persons
subject to Section 16 of the Exchange Act, not of the Company or the
Administrator, to comply with the requirements of Section 16 of the Exchange
Act; and neither the Company nor the Administrator shall be liable if this Plan
or any transaction under this Plan fails to comply with the applicable
conditions of Rule 16b-3, or if any such person incurs any liability under
Section 16 of the Exchange Act.
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EXHIBIT 5.1
DOEPKEN KEEVICAN & WEISS
58th Floor, USX Tower
600 Grant Street
Pittsburgh, Pennsylvania 15219
October 2, 1998
Mylan Laboratories Inc.
1030 Century Building
130 Seventh Street
Pittsburgh, Pennsylvania 15222
RE: Mylan Laboratories Inc.
Registration on Form S-8
Ladies and Gentlemen:
We have acted as counsel for Mylan Laboratories Inc., a Pennsylvania
corporation (the "Company"), in connection with the registration with the
registration with the Securities and Exchange Commission (the "SEC") by the
Company of 176,800 shares of the Company's common stock (the "Common Stock")
issuable upon the exercise of certain options awarded under the Penederm
Incorporated 1994 Nonemployee Directors Stock Option Plan (the "Plan") pursuant
to the Securities Act of 1933, as amended (the "Act"), for sale by certain
selling shareholders.
In connection with the registration, we have examined the following:
(a) The Certificate of Incorporation and By-laws of the Company,
each as amended to date;
(b) The Registration Statement on Form S-8 (the "Registration
Statement") relating to the Common Stock, as filed with the
SEC;
(c) Penederm Incorporated 1994 Nonemployee Directors Stock Option
Plan (the "Plan"); and
(d) Such other documents, records, opinions, certificates and papers as
we have deemed necessary or appropriate in order to give the opinions
hereinafter set forth.
<PAGE>
Mylan Laboratories Inc.
October 2, 1998
Page 2
The opinions hereinafter expressed are subject to the following
qualifications and assumptions :
(i) In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us
as originals and the conformity of all documents submitted to
us as copies to the originals thereof.
(ii) As to the accuracy of certain factual matters, we have relied
on the certificates of officers of the Company and
certificates, letters, telegrams or statements of public
officials.
(iii) We express no opinion on the laws of any jurisdiction other
than the United States of America and the Pennsylvania
Business Corporation Law.
Based upon and subject to the foregoing, we are pleased to advise you
that, insofar as the laws of the Commonwealth of Pennsylvania and the United
States of America are concerned, it is our opinion that the 176,800 shares of
Common Stock to be issued upon the exercise of options awarded under the Plan
have been duly authorized and will, when issued upon the exercise of the
options, be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Doepken Keevican & Weiss
DOEPKEN KEEVICAN & WEISS
PROFESSIONAL CORPORATION
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Mylan Laboratories Inc. on Form S-8 of our report dated May 7, 1998,
incorporated by reference in the Annual Report on Form 10-K of Mylan
Laboratories Inc. for the year ended March 31, 1998.
Deloitte & Touche LLP
Pittsburgh, Pennsylvania
October 1, 1998
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Mylan Laboratories Inc. on Form S-8 of our report dated February 4, 1998
relating to the consolidated financial statements of Somerset Pharmaceuticals,
Inc. and subsidiaries as of December 31, 1997 and 1996 and for each of the three
years in the period ended December 31, 1997, appearing in the Annual Report on
Form 10-K of Mylan Laboratories Inc. for the year ended March 31, 1998.
Deloitte & Touche LLP
Pittsburgh, Pennsylvania
October 1, 1998
<PAGE>
