As filed with the Securities and Exchange Commission on January 24, 1997
Registration No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________________
THE LIPOSOME COMPANY, INC.
(Exact name of Company as specified in its charter)
Delaware One Research Way 22-2370691
(State or other jurisdiction of Princeton (I.R.S.
incorporation or organization) Forrestal Center Employer
Princeton, New Identificat
Jersey 08540 ion Number)
(Address of
principal
executive
offices)
(Zip Code)
THE LIPOSOME COMPANY 1996 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Charles A. Baker
Chairman and
Chief Executive Officer
The Liposome Company, Inc.
One Research Way
Princeton Forrestal Center
Princeton, New Jersey 08540
(609) 452-7060
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
CALCULATION OF REGISTRATION
FEE
Proposed Proposed
Amount Maximum Maximum
Title of Securities Of SecuritiesOffering Aggregate Amount of
to be Registered to Be Price Offering Registration
Registered Per Price (1) Fee
Share
(1)
Common Stock, par
value $.01 per share....... 4,500,000 $19.875 $89,437,5 $27,102.27
00
(1) Pursuant to Rule 457(h), these prices are estimated solely for the purpose
of calculating the registration fee and are based upon the average of the high
and low sales prices of the Company's Common Stock on NASDAQ National Market
System on January 17, 1997.
There are also registered hereunder such additional indeterminate number of
shares as may be issued as a result of the antidilution provisions of The
Liposome Company 1996 Equity Incentive Plan (the "Plan").
PART I
ITEM 1. PLAN INFORMATION
Not included pursuant to Form S-8 instructions.
ITEM 2. COMPANY INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not included pursuant to Form S-8 instructions.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Annual Report on Form 10-K for the fiscal year ended December 31,
1995 filed by The Liposome Company, Inc. (the "Company"), the Company's
quarterly reports on Form 10-Q for the quarters ended March 31, 1996, June 30,
1996, and September 30, 1996, and the Company's Current Reports on Form 8-K
dated February 22, 1996 and February 28, 1996, all filed by the Company with the
Securities and Exchange Commission (the "Commission") are hereby incorporated by
reference in this Registration Statement. All documents filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") after the date
of this Registration Statement and 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 into this Registration Statement and to be a part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Carol J. Gillespie is Vice President, General Counsel and Secretary of
the Company. Ms. Gillespie has the right to purchase 90,150 shares of the
Company's common stock upon the exercise of stock options held by her, including
9,500 shares under options granted to her pursuant to the Plan. She also holds
516 shares of restricted stock granted under the Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law, among other
things, and subject to certain conditions, authorizes the Company to indemnify
its officers and directors against certain liabilities and expenses incurred by
such persons in connection with claims made by reason of their being such an
officer or director. The By-laws of the Company provide for indemnification of
its officers and directors to the full extent authorized by law.
The Company's Certificate of Incorporation provides that no director
of the Company shall be personally liable to the Company 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 or loyalty to the Company 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 any improper personal benefit. Any repeal or modification of
the foregoing amendment after its adoption by the stockholders of the Company
will not adversely affect any right or protection of a director of the Company
existing at the time of such repeal or modification.
The Board of Directors and the Company's stockholders have approved
the use of an indemnification agreement (the "Indemnification Agreement"). The
Indemnification Agreement requires that the Company indemnify directors and
executive officers who are parties thereto in all cases to the fullest extent
permitted by applicable Delaware law. This contract right to indemnification
gives all directors and executive officers protection against a subsequent
adverse change in the Company's indemnification provisions in its By-laws or a
change of control of the Company.
The Company has obtained an insurance policy insuring its officers and
directors for certain acts in connection with their services as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this Registration
Statement:
Exhibit No. Description of Document
4.1 Provisions of the Articles of Incorporation of the Company defining
rights of holders of Common Stock of the Company
(Exhibit 3(i)-01 to the Company's annual report on Form 10-K for
the year ended December 31, 1994, incorporated herein
by reference thereto).
4.2 Provisions of the By-laws of the Company defining rights of holders
of the Common Stock of the Company (Exhibit 4.5 to
Registration Statement No. 33-23292, incorporated herein by
reference thereto).
4.3 The Liposome Company 1996 Equity Incentive Plan (Appendix to the
Company's 1996 Proxy Statement, File No. 000-14887,
incorporated herein by reference thereto).
5 Opinion of Carol J. Gillespie, Esq., including her consent.
23 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in the Registration Statement, page 4).
ITEM 9. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act") may be permitted to
directors, officers, and controlling persons of the Company described in Item 15
or otherwise, the Company has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for the
indemnification against such liabilities (other than the payment by the Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company 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.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Company pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective(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 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% 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)(l)(i) and (a)(l)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and 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.
(2) F (2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment that contains a form
of prospectus 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.
(3) Fb) 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 filling of an
employee benefit plan's annual Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Actreport pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Sregistration 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 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 in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
SIGNATURES
THE COMPANY. Pursuant to the requirements of the Securities Act the
Company 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 Township of Plainsboro, the State of New Jersey, on this 23rd
day of January, 1997.
THE LIPOSOME COMPANY, INC.
By: Charles A. Baker
Charles A. Baker
Chairman of the Board,
Chief
Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Charles A. Baker and Carol J. Gillespie,
and each of them, 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 and all amendments (including
post-
effective amendments) to this Registration Statement, and to file the same, with
all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto 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 or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and conforming all that said attorneys-in-fact and agents or any of
them, or their or his 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 on the 23rd day of January, 1997.
Signature Capacity
Charles A. Baker Chairman of the Board,
Charles A. Baker Chief Executive Officer,
President and Director
(Principal Executive Officer)
Brian J. Geiger Vice President, Finance
Brian J. Geiger (Principal Financial and Accounting
Officer)
James G. Andress Director
James G. Andress
Morton Collins Director
Morton Collins
Stuart F. Feiner Director
Stuart F. Feiner
Robert F. Hendrickson Director
Robert F. Hendrickson
Bengt Samuelsson Director
Bengt Samuelsson
Joseph T. Stewart, Jr. Director
Joseph T. Stewart, Jr.
Gerald Weissmann Director
Gerald Weissmann
Horst Witzel Director
Horst Witzel
THE LIPOSOME COMPANY, INC.
___________________________
EXHIBITS
TO
REGISTRATION STATEMENT
ON
FORM S-8
___________________________
The Liposome Company 1996 Equity Incentive Plan
Exhibit 5
January 23, 1997
The Liposome Company, Inc.
One Research Way
Princeton Forrestal Center
Princeton, New Jersey 08540-6619
Gentlemen:
On or about January 24, 1997, The Liposome Company, Inc. (the "Company")
will file with the Securities and Exchange Commission on Form S-8 its
Registration Statement ("Registration Statement") relating to 4,500,000 shares
of Common Stock that may be issued or transferred by the Company upon the
exercise of stock options or pursuant to performance awards or restricted stock
grants, that may be granted to employees of the Company and its subsidiaries
under The Liposome Company 1996 Equity Incentive Plan (the "Plan").
With respect to the Company and shares of its Common Stock, I am of the
opinion that:
A. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
B. The 4,500,000 shares of Common Stock referred to above:
(i) are duly authorized;
(ii) upon selection, in accordance with the terms of the Plan, of
grantees from among those employees of the Company and its subsidiaries
eligible for receipt of stock options, performance awards, and restricted
stock grants ("Eligible Employees"), may be validly included in grants of
stock options, performance awards, restricted stock grants and other awards
authorized by the Plan to such Eligible Employees; and
(iii) will be validly issued and outstanding, fully paid and
nonassessable upon issuance or transfer:
(a) pursuant to the due exercise of stock options in accordance
with the terms and subject to the conditions of the Plan and the
payment of the option price stated in such options;
(b) pursuant to fulfillment of all conditions required by the
Plan for the issuance or transfer of such shares of Common Stock
pursuant to performance awards and other awards authorized by the
Plan; and
(c) pursuant to restricted stock grants subject, however, to
termination of the grant and the requirement for re-transfer of the
shares to the Company if the grantee does not comply with the
restrictions of the restricted stock grant.
In arriving at the foregoing opinion, I have examined corporate records,
plans, agreements and other documents of the Company.
I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such consent, I do not admit that I come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Sincerely,
Carol J. Gillespie
Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement on
Form S-8, related to the 1991 Director's Non-Qualified Stock Option Plan, of our
report dated February 2, 1996 on our audits of the financial statements of The
Liposome Company, Inc.
Princeton, New Jersey
January 24, 1997
COOPERS & LYBRAND L.L.P.
