<PAGE>
As filed with the Securities
and Exchange Commission on November 16, 1999.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
SICOR INC.
(formerly Gensia Sicor Inc.)
(Exact name of registrant as specified in its charter)
Delaware 33-0176647
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
19 Hughes
Irvine, California 92618
(949) 455-4700
(Address, including zip code, and telephone number, including
area code of registrant's principal executive offices)
<TABLE>
<S> <C>
Copies to:
CARLO SALVI THOMAS E. SPARKS, JR., ESQ.
President and Chief Executive Officer Pillsbury Madison & Sutro LLP
SICOR Inc. P. O. Box 7880
19 Hughes San Francisco, CA 94120-7880
Irvine, California 92618 (415) 983-1000
(949) 455-4700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
</TABLE>
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement as determined by
the Selling Stockholder.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box: [ ]
- ---------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- ---------------------------------- ------------ ------------------ ------------------ ----------------
Title of each class of securities Amount to be Proposed maximum Proposed maximum Amount of
to be registered registered offering price per aggregate offering registration fee
unit(1) price
- ---------------------------------- ------------ ------------------ ------------------ ----------------
Common Stock, $.01 par value 9,542,500(2) $ 4.5938 $ 43,836,336.50 $ 12,186.50
- ---------------------------------- ------------ ------------------ ------------------ ----------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c). Based upon the average of the high and low
price reported on the Nasdaq National Market as of November 12, 1999.
(2) Includes 867,500 shares of common stock reserved for issuance upon the
issuance and exercise of warrants. Pursuant to Rule 416 this
Registration Statement also covers such indeterminate number of
additional shares, if any, as shall be issuable from time to time to
prevent dilution resulting from stock splits, stock dividends or similar
transactions.
The registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
Subject to Completion, dated November 16, 1999
SICOR INC.
9,542,500 Shares of Common Stock
--------
This prospectus relates to the offer and sale of our common stock by the
selling stockholders, identified on page 11, as follows:
- 8,675,000 shares issued to investors in our May/June, 1999
financing; and
- up to 867,500 shares issuable upon exercise of warrants,
with an exercise price of $5.75 per share, issued to the
investors in the financing.
For additional information on the methods of sale, you should refer to
the section entitled "Plan of Distribution" on page 11. We will not receive any
portion of the proceeds from the sale of these shares.
Our common stock is quoted on the Nasdaq National Market under the
symbol "SCRI." On November 15, 1999, the last sale price of the common stock on
the Nasdaq National Market was $4.75 per share.
THIS PROSPECTUS COVERS ONLY DISPOSITIONS OF THE SHARES, INCLUDING SHARES
ISSUABLE UPON EXERCISE OF THE WARRANTS, NOT THE ISSUANCE OR TRANSFER OF THE
WARRANTS THEMSELVES. THE WARRANTS WILL NOT BE LISTED ON ANY SECURITIES EXCHANGE
OR QUOTED IN ANY OVER-THE-COUNTER MARKET.
Investing in our common stock involves risks. See "Risk Factors"
beginning on page 2.
Neither the Securities and Exchange Commission nor any State Securities
Commission has approved or disapproved these securities or passed upon the
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
--------------
The date of this Prospectus is , 1999
-------------
<PAGE>
RISK FACTORS
You should carefully consider the risks described below before making an
investment decision. The risks and uncertainties described below are not the
only ones facing us. Additional risks and uncertainties not presently known to
us or that we currently deem immaterial may also impair our business.
If any of the following risks actually occur, our business could be
adversely affected. In those cases, the trading price of our common stock could
decline, and you may lose all or part of your investment.
Our Additional Financing Requirements and Limited Access to Financing May
Adversely Affect Our Ability to Develop Products
We may need to raise additional funds to maintain our current and
planned operations. If we are unable to raise additional funds we may have to
reduce our capital resources, scale back our development of new products and
reduce our workforce. We believe that our existing resources, will enable us to
maintain our current and planned operations through at least 2000.
Our future capital requirements will depend on many factors, including:
. continued progress in our development programs,
. the time and costs involved in obtaining regulatory approvals,
. competing market developments,
. the outcome of litigation between us and American Pharmaceutical
Partners
. effective licensing agreements, commercialization activities and
arrangements, and
. other factors not within our control.
In addition, at September 30, 1999 approximately $110 million of our
$376 million in assets was either intangibles or goodwill. We may not be able to
realize any value from these intangible assets.
The Outcome of Pending Lawsuits Could Adversely Effect Our Finances and Limit
Our Ability to Market Our Products
In February 1999, a lawsuit was filed by Zeneca, Inc., Zeneca, in the
U.S. District Court in Baltimore, Maryland against the Food and Drug
Administration, FDA, with regards to our wholly owned subsidiary, Gensia Sicor
Pharmaceuticals' Abbreviated New Drug Application, ANDA, for propofol. In the
suit, Zeneca alleged that the FDA improperly approved Gensia Sicor
Pharmaceuticals' propofol product. We believe this lawsuit is without merit, and
that it represents Zeneca's continued legal maneuvering to stop the FDA approval
of generic propofol. Gensia Sicor Pharmaceuticals intervened in the lawsuit to
protect its interest and support the FDA in its defense of this lawsuit. The
court denied Zeneca's motion for a preliminary injunction on March 26, 1999, and
on August 11, 1999, granted Gensia Sicor Pharmaceuticals' and the FDA's motion
for summary judgment and entered judgment in favor of the defendants. However,
in the event that Zeneca is ultimately successful on appeal in its litigation
against the FDA, it could have a material adverse effect on our financial
position, results of operations or cash flows.
In April 1999 Gensia Sicor Pharmaceuticals, filed a lawsuit in the
Superior Court of California for Orange County against American Pharmaceutical
Partners, APP, for breach of contract, breach of the implied covenant of good
faith and fair dealing, unfair competition and declaratory relief. The suit
alleges that APP has breached a distributorship agreement for some of Gensia
Sicor Pharmaceuticals' products by, among other things, acquiring and operating
a business which competes with Gensia Sicor Pharmaceuticals with respect to some
of the same products. We are seeking damages in addition to a declaration that
we have no obligation or liability to APP.
-2-
<PAGE>
We are also a defendant in various actions, claims, and legal
proceedings arising from our normal business operations. Management believes we
have meritorious defenses and intends to vigorously defend against all
allegations and claims. No contingent liabilities or provisions have been
recorded in our financial statements for such matters, as the ultimate outcome
of these matters is uncertain. However, in management's opinion, liabilities
arising from such matters, if any, will not have a significant negative effect
on our consolidated financial position, results of operations or cash flows.
Our History of Operating Losses and Uncertainty of Future Profitability May
Adversely Affect Us
We have not been profitable on an annual basis since our inception in
1986. Although we have taken steps to decrease our losses, and were profitable
in the second and third quarters of 1999, we may never make an annual profit. We
may not be able to generate sufficient product revenue to become profitable on a
sustained basis and we may incur additional losses in the future. For the period
from our inception to September 30, 1999, we have incurred a cumulative net loss
of $353.9 million.
Competition Adversely Affected Our Operating Margins
We compete in the highly competitive multisource (generic) injectable
drug industry with numerous other pharmaceutical manufacturers, many of which
are established companies with greater financial and other resources than us. We
may not be able to continue to compete effectively in this market. Because
selling prices of multisource injectable drug products typically decline as
competition intensifies, our profitability will depend in part on our ability to
develop and introduce selected new products to the market in a timely manner, to
obtain raw materials at competitive prices and to improve the efficiency of our
production capability.
Our Failure to Comply With Stringent Government Regulations Regarding the
Development, Manufacture and Marketing of Our Current Drugs Under Development
Could Adversely Affect Our Ability to Obtain Required Approvals Which Could
Adversely Affect Us
The testing of the potential drugs we are developing and the
manufacturing and marketing of our drugs are subject to regulation by numerous
federal, state and local governmental authorities in the United States, and by
similar agencies in other countries in which we develop, manufacture and market
drugs. We must receive approval for each of our drugs from the applicable
regulatory agencies before it may be marketed as a drug in a particular country.
The regulatory process can take many years and requires us to expend
substantial resources. In addition, we may encounter delays or rejections based
on changes in regulatory agency policies during the period in which a potential
drug is being developed and/or the period required for review of any application
for regulatory agency approval. Delays in obtaining regulatory agency approvals
could negatively affect the marketing of any potential drug. Delays could:
. result in the imposition of costly procedures on our activities,
. diminish any competitive advantages that we attain,
. negatively affect our ability to receive royalties, and
. we may not obtain, regulatory agency approvals for potential
drugs.
Moreover, if we obtain regulatory agency approval for a drug, such
approval may be limited regarding the indicated uses for which the drug may be
marketed and this would limit our potential market for the drug. Furthermore,
the marketing and manufacture of drug products remain subject to extensive
regulatory requirements. The discovery of previously unknown problems with our
drug could result in restrictions on the drug including withdrawal of the drug
from the market. If we fail to comply with regulatory requirements:
. we could be fined,
-3-
<PAGE>
. our regulatory approvals suspended,
. our operations restricted, and
. we could be involved in criminal prosecution.
In addition, regulatory agency approval of pricing is required in many
countries and may be required for the marketing in such countries of any drug we
develop.
If Key Personnel Leave We Could Fail to Achieve Our Objectives
We are highly dependent on the principal members of our scientific,
manufacturing, marketing and management personnel, the loss of whose services
might significantly delay or prevent the achievement of our objectives. We face
competition in attracting and retaining personnel from other companies, academic
institutions, government entities and other organizations.
Our Patents and Proprietary Technology May Not Provide Us With Any Benefit and
the Patents and Proprietary Technology of Others May Prevent Us From
Commercializing Products
Others may have or may receive patents which contain claims applicable
to our products. These patents may impede our ability to commercialize products.
We also rely on protecting our proprietary technology in part through
confidentiality agreements with our corporate collaborators, employees,
consultants and certain contractors. These agreements may be breached and we may
not have adequate remedies for any breach. In addition, our trade secrets may
otherwise become known or independently discovered by our competitors.
Our products and processes may infringe, or be found to infringe,
patents not owned or controlled by us. If relevant claims of third-party patents
are upheld as valid and enforceable, we could be prevented from practicing the
subject matter claimed in the patents, or would be required to obtain licenses
or redesign our products or processes to avoid infringement. We may not be able
to obtain licenses at all or on terms commercially reasonable to us and we may
not be able to redesign our products or processes to avoid infringement.
We may have to litigate to defend against claims of infringement, to
enforce patents issued to us or to protect trade secrets. Litigation has and
could result in substantial costs and the diversion of management's efforts
regardless of the results of the litigation. An unfavorable result in litigation
could subject us to significant liabilities to third parties, require disputed
rights to be licensed or require us to cease using some technology.
Potential Inability to Obtain Raw Materials or Manufacture Products May Harm Our
Business
We depend on third party manufacturers for bulk raw materials for many
of our products. These raw materials are generally available from a limited
number of sources, and some raw materials are available only from foreign
sources. In addition, Gensia Sicor Pharmaceuticals, Inc. utilizes sole sources
of supply for some raw materials used in the manufacture of its products and
some packaging components. Any disruption in one or more of these supply sources
could disrupt our ability to manufacture some of our products.
Adverse Determinations Concerning Product Pricing, Reimbursement and Related
Matters Could Prevent Us From Successfully Commercializing Products
Our ability to earn sufficient returns on our products will depend in
part on the extent to which reimbursement for the costs of the products and
related treatments will be available from:
. government health administration authorities,
. private health coverage insurers,
-4-
<PAGE>
. managed care organizations, and
. other organizations.
If we fail to obtain appropriate reimbursement, it could prevent us from
successfully commercializing products.
There are continuing efforts by governmental and third party payors to
contain or reduce the costs of health care through various means. Domestically
and internationally, there have been, and we expect that there will continue to
be, a number of legislative proposals to implement government controls. The
announcement of proposals or reforms could impair our ability to raise capital.
The adoption of proposals or reforms could impair our business.
Additionally third party payors are increasingly challenging the price
of medical products and services. If purchasers or users of our products are not
able to obtain adequate reimbursement for the cost of using our products, they
may forego or reduce their use. Significant uncertainty exists as to the
reimbursement status of newly approved health care products, and whether
adequate third party coverage will be available.
Product Liability Exposure May Expose Us to Significant Liability
We face an inherent business risk of exposure to product liability and
other claims in the event that our technologies or products are alleged to have
resulted in adverse effects. We may not be able to avoid significant liability
exposure.
As a manufacturer of bulk drug substances, we supply other
pharmaceutical companies with active ingredients which are contained in finished
products. Our ability to avoid significant product liability exposure depends in
part upon on our ability to negotiate appropriate commercial terms and
conditions with our customers and our customers' manufacturing, quality control
and quality assurance practices. We may not be able to negotiate satisfactory
terms and conditions with our customers.
Although we currently maintain product liability insurance, we may not
have sufficient insurance coverage and we may not be able to obtain sufficient
coverage, at a reasonable cost. If we fail to obtain product liability insurance
at an acceptable cost or to otherwise protect against potential product
liability claims, it could prevent or inhibit the commercialization of products
developed by us.
Uncertainty Regarding Mexican Economic Factors, Government Policies and
Inflation
The Mexican government has exercised and continues to exercise
significant influence over many aspects of the Mexican economy. Accordingly,
Mexican government actions could significantly effect our subsidiaries Lemery
and Sicor de Mexico, market conditions, and prices in Mexico.
A large portion of the finished multisource drug products manufactured
by Lemery are sold to the government public hospital program in Mexico. The
government public hospital program in Mexico may stop purchasing products from
Lemery. Although the Mexican government has to date paid Lemery on a timely
basis, this payment pattern could stop in the future. Further, as recently as
1995, Mexico experienced high double digit inflation and there is always a
possibility of recurrence. Actions by the Mexican government, future
developments in the Mexican economy and Mexico's political, social or economic
situation may disrupt or impede the operations of Lemery and Sicor de Mexico.
Risks Related to International Operations Could Disrupt Our Subsidiaries'
Operations
Our subsidiaries, Sicor, Lemery, Sicor de Mexico, and Diaspa derive a
significant percentage of revenues from sales of pharmaceuticals outside of
Canada, Western Europe, Japan and the United States. Operations outside of
Canada, Western Europe, Japan and the United States are subject in varying
degrees to risks involved in doing business abroad such as war, civil
disturbances, adverse governmental actions and economic and governmental
instability. If any of the risks mentioned above were to occur, our operations
outside of Canada, Western Europe, Japan and the United States could be
disrupted or even appropriated and severely effect our financial condition.
-5-
<PAGE>
Potential Adverse Impact of Year 2000
Our international sales represent nearly fifty percent of our revenue.
The Mexican government public hospital program, and other of our large
international customers may not be Year 2000 compliant.
We have not identified our most reasonably likely worst case scenario
with respect to possible losses in connection with Year 2000 related problems.
There are many factors outside of our control that could cause the Year
2000 problem to seriously disrupt our operations. The most critical of the risks
facing us are:
. a disruption in the supply of product with particular emphasis
on failures of raw material suppliers, commercial partners, and
external distribution channels,
. internal infrastructure failures such as utilities,
communications, internal information services and integrated
information systems,
. government failures, especially as they impact import and export
activity, interruption of the product regulatory filing process,
and
. a major customer failure or interruption.
If either our or any of our important customers or vendors experience a
failure of any critical system, that failure could have a significant negative
effect on our business.
Hazardous Materials/Environmental Matters Could Expose Us to Significant Costs
Our business involves the controlled storage, use and disposal of
hazardous materials and biological hazardous materials. We are subject to
numerous environmental regulations in the jurisdictions in which we operate.
Although we believe that our safety procedures for handling and disposing of
these hazardous materials comply with the standards prescribed by law and
regulation, the risk of accidental contamination or injury from hazardous
materials cannot be completely eliminated. In the event of an accident, we could
be held liable for any damages that result, and such liability could exceed our
resources. Our operations, business and assets may be substantially and
detrimentally affected by current or future environmental laws or regulations.
In addition, we maintain liability insurance for some environmental risks which
our management believes to be appropriate and in accordance with industry
practice. We may incur liabilities beyond the limits or outside the coverage of
our insurance and we may not be able to maintain insurance on acceptable terms,
or at all.
Currency Fluctuations
We have significant operations in several countries, including the
United States, Italy, Mexico and Switzerland. In addition, purchases and sales
are made in a large number of other countries. As a result, we are subject to
the risk and uncertainties of foreign currency fluctuations. While we have
policies and strategies to minimize this risk, these policies and strategies may
not work to prevent significant negative financial adjustments in the future.
Control by Principal Stockholder
Carlo Salvi, our President, Chief Executive Officer and a director,
beneficially owns approximately 37% of our common stock. In addition, pursuant
to a shareholder's agreement, dated as of November 12, 1996, as amended,
Rakepoll Finance, an entity controlled by Mr. Salvi, is entitled to designate
three of our nine directors, who in turn are entitled to designate (jointly with
two of our executive officer directors) five additional directors. In addition,
the consent of the Rakepoll Finance designated directors is required for us to
take some actions, such as a merger or sale of all or substantially all of our
business or our assets and certain issuances of our securities. As a result of
his ownership of our common stock, Mr. Salvi may be able to control
substantially all matters requiring approval by
-6-
<PAGE>
our stockholders, including the election of directors and the approval of
mergers or other business combination transactions.
Volatility of Stock Price and Absence of Dividends May Hurt Common Stockholders
The market price of our common stock, like that of the common stock of
many other companies, has been and is likely to be highly volatile. Factors such
as:
. evidence of the safety or efficacy of our products or products
of our competitors,
. announcements of technological innovations or new products by us
or our competitors,
. governmental regulatory actions,
. changes or announcements in reimbursement policies,
. developments with our collaborators,
. developments concerning patent or other proprietary rights of
ours or our competitors (including litigation),
. concern as to the safety of our products,
. period-to-period fluctuations in our operating results,
. changes in estimates of our performance by securities analysts,
. market conditions for stocks in general, and
. other factors not within our control
could have a significant negative impact on the market price of our common
stock.
We have never paid cash dividends on our common stock and do not
anticipate paying any cash dividends in the foreseeable future. Unless full
cumulative dividends are paid on our outstanding $3.75 convertible exchangeable
preferred stock, $.01 par value, cash dividends may not be paid or declared and
set aside for payment on our common stock. At September 30 1999, we had
approximately $7.5 million in undeclared cumulative preferred dividends on the
convertible preferred stock.
Subordination of Common Stock to Notes and Preferred Stock Could Hurt Common
Stockholders
Our common stock is expressly subordinate to $20,000,000 of 2.675%
subordinated convertible notes due May 1, 2004, and to the series A preferred
stock into which the notes are convertible, in the event of our liquidation,
dissolution or winding up. Our common stock is also subordinate to the
approximately $80,000,000 (plus accrued and unpaid dividends) liquidation
preference of our outstanding $3.75 convertible exchangeable preferred stock. If
we were to cease operations and liquidate our assets, there may not be any
remaining value available for distribution to the holders of common stock after
providing for the above liquidation preferences.
Effect of Anti-Takeover Provisions Could Adversely Affect Our Common
Stockholders
Our Certificate of Incorporation and Bylaws include provisions that
could discourage potential takeover attempts and make attempts by stockholders
to change management more difficult. The approval of 66-2/3 percent of our
voting stock is required to approve certain transactions and to take certain
stockholder actions, including the calling of special meetings of stockholders
and the amendment of any of the anti-takeover provisions contained in our
Certificate of Incorporation. We also have a stockholder rights plan, the effect
of which may also deter or
-7-
<PAGE>
prevent takeovers. These rights will cause substantial dilution to the ownership
of a person or group that attempts to acquire us on terms not approved by the
Board of Directors and may have the effect of deterring hostile takeover
attempts.
-8-
<PAGE>
ADDITIONAL OR UPDATED RISK FACTORS
Prior to making an investment decision with respect to the common stock
offered hereby, you should also carefully consider any specific factors set
forth under a caption "risk factors" in the applicable prospectus supplement,
together with all of the other information appearing in this prospectus or the
prospectus supplement or incorporated by reference into this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
When used in this prospectus, the words "intends to," "believes,"
"anticipates," "expects" and similar expressions are intended to identify
forward-looking statements. These forward-looking statements are based largely
on our expectations and are subject to a number of risks and uncertainties, some
of which are beyond our control. For a discussion of some of these risks, see
"Risk Factors." These forward-looking statements speak only as of the date of
this prospectus. We expressly disclaim any obligation or undertaking to release
publicly any updates or revisions to any forward-looking statement contained
within this prospectus to reflect any change in our expectations with regard to
those forward-looking statements or any change in events, conditions or
circumstances on which any such statement is based.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. This information can be (1) read and copied at
the public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Judiciary Plaza, Washington, D.C., and at the SEC's Chicago Regional Office, 500
West Madison Street, Chicago, Illinois; and New York Regional Office, 7 World
Trade Center, New York, New York and (2) accessed via a Web site maintained by
the SEC (http://www.sec.gov). Copies of the material can also be obtained from
the Public Reference Section of the SEC at 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549 at prescribed rates. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms.
This prospectus is a part of a registration statement we filed with the
SEC. This prospectus does not contain all of the information set forth in the
registration statement. For more information about us and our common stock, you
should read the registration statement and its exhibits and schedules. Copies of
the registration statement, including its exhibits may be obtained from the
SEC's principal office in Washington, D.C. upon payment of the fees prescribed
by the SEC, or may be examined without charge at the offices of the SEC.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 (File No. 333-44563):
(a) Our Annual Report on Form 10-K for the year ended December 31,
1998 (File No. 0-18549);
(b) Our Quarterly Reports on Form 10-Q for the quarters ended March
31, 1999, June 30, 1999 and September 30, 1999;
(c) The description of our common stock set forth in the
Registration Statement on Form 8-A filed on April 27, 1990; and
(d) The description of the rights to purchase Series I Participating
Preferred Stock, $.01 par value, set forth in the Registration
Statement on Form 8-A filed on March 23, 1992.
Upon written or oral request, we will provide without charge to each
person to whom a copy of this prospectus is delivered a copy of the documents
incorporated by reference into this prospectus (other than exhibits to these
documents unless the exhibits are specifically incorporated by reference into
those documents). Requests
-9-
<PAGE>
should be submitted in writing or by telephone at (949) 455-4700 to SICOR Inc.,
at our principal executive offices, 19 Hughes, Irvine, California 92618.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by the
Selling Shareholders in the offering.
ISSUANCE OF COMMON STOCK AND WARRANTS TO SELLING STOCKHOLDERS
On May 20, 1999 and June 10, 1999, pursuant to Unit Purchase Agreements,
we sold an aggregate of 8,675,000 units (each unit consisting of one share of
our common stock and, conditionally, one warrant to purchase one-tenth of a
share of our common stock) to the selling stockholders in a private placement
offering. This prospectus covers the resale of the 9,542,500 shares of our
common stock issued (or issuable upon exercise of the warrants) in connection
with the private placement to the selling stockholders.
INCOME TAX CONSIDERATIONS
You should consult your tax advisor about the income tax issues and the
consequences of holding and disposing of our common stock.
-10-
<PAGE>
SELLING STOCKHOLDERS
As of September 30, 1999 there were five Selling Stockholders, as set
forth below. Share ownership information is based solely upon either information
furnished to us or reports furnished to us by the respective individuals or
entities, as the case may be, pursuant to the rules of the Commission:
<TABLE>
<CAPTION>
Shares Other Shares of % of Common
Potentially Common Stock Stock to be
Shares of Potentially Owned(1) Prior Held After Sale
Common Stock Issuable Upon to and to be Assuming Full
Held as a Result Exercise of Owned Subsequent Issuance and
of the Private the to the Comple- Exercise of the
Selling Stockholders Placement Warrants tion of Offering Warrants
- ------------------------------------ ---------------- -------------- ---------------- ---------------
<S> <C> <C> <C> <C>
Stamford Investments, Ltd........... 5,750,000 575,000 0 7
---------- -------
Carlo Salvi(2)...................... 2,500,000 250,000 30,838,799 (3) 37
---------- -------
Berger Trust Luxembourg Holding SA.. 250,000 25,000 0 *
---------- -------
Castelluccio One Ltd................ 125,000 12,500 0 *
---------- -------
Glicine Investment Inc.............. 50,000 5,000 0 *
---------- -------
</TABLE>
- ----------
* Less than one percent.
(1) Includes shares of common stock owned by the Selling Stockholders which
are not covered by this Prospectus. Ownership information is based on
the Company's knowledge and publicly available information.
(2) Mr. Salvi is our President, Chief Executive Officer and one of our
directors. Alco Chemicals, Ltd. ("Alco"), a company wholly owned by Mr.
Salvi, acts as a sales agent for certain bulk pharmaceutical products
produced by Sicor, in exchange for a commission of 4% of sales.
Additionally, Alco acts as a non-exclusive sales agent for Sicor for
certain bulk pharmaceutical products produced by certain of our
subsidiaries, in exchange for a commission of 4% of sales. The parties
determine, from time to time, those bulk pharmaceutical products for
which Alco will act as a sales agent. Further, Archimica S.p.A., in
which Mr. Salvi previously had a 50% beneficial ownership interest,
acquired a 50% beneficial interest in Diaspa S.p.A. in December 1997. We
also acquired a 50% beneficial ownership interest in Diaspa S.p.A.,
which is an Italian pharmaceutical company specializing in bulk
fermentation products. We subsequently acquired the remaining 50%
interest from Archimica. In June of 1999, we repaid a loan of $10
million made by Mr. Salvi to us in December 1998, eliminating, on our
behalf, approximately $800,000 in annual interest payments. The
repayment of Mr. Salvi's loan was made in connection with the purchase
by Mr. Salvi of 2.5 million Units for $10 million.
(3) Includes 29,500,000 shares owned by Rakepoll Finance, a majority-owned
direct subsidiary of Karbona Industries Ltd., which is wholly owned by
Mr. Salvi. Also includes (i) 575,000 shares owned by Nora Real Estate
S.A. and 50,000 shares owned by Alco, both of which are wholly owned by
Mr. Salvi, (ii) 170,236 shares subject to a warrant exercisable within
60 days of September 30, 1999 and (iii) options to purchase 103,091
shares exercisable within 60 days of September 30, 1999.
PLAN OF DISTRIBUTION
The shares are being offered on behalf of the selling stockholders, and
we will not receive any proceeds from the offering. The selling stockholders may
offer the common stock:
. directly to purchasers,
. to or through underwriters,
. through dealers, agents or institutional investors, or
. through a combination of such methods.
Regardless of the method used to sell the common stock, to the extent
necessary, we will provide a prospectus supplement that will disclose:
. the identity of any underwriters, dealers, agents or investors
who purchase the common stock,
. the material terms of the distribution, including the number of
shares sold and the consideration paid,
. the amount of any compensation, discounts or commissions to be
received by the underwriters, dealers or agents,
-11-
<PAGE>
. the terms of any indemnification provisions, including
indemnification from liabilities under the federal securities
laws, and
. the nature of any transaction by an underwriter, dealer or agent
during the offering that is intended to stabilize or maintain
the market price of our common stock.
All expenses (estimated to be $70,000) of the registration of the
common stock covered by this prospectus will be borne by us pursuant to
preexisting agreements, except that we will not pay any selling stockholder's
underwriting discounts or selling commissions.
We have agreed to indemnify the selling stockholders against certain
liabilities in connection with this registration, including liabilities under
the Securities Act.
In order to comply with certain states' securities laws, if applicable,
the common stock will not be sold in a particular state unless such securities
have been registered or qualified for sale in such state or any exemption from
registration or qualification is available and complied with.
LEGAL MATTERS
The validity of the issuance of the shares offered in this prospectus
will be passed upon for us by Pillsbury Madison & Sutro LLP, San Francisco,
California. A member of the law firm of Pillsbury Madison & Sutro LLP owns
40,000 shares of common stock, and has an option to acquire an additional 25,000
shares of common stock.
EXPERTS
Our consolidated financial statements appearing in our Annual Report
(Form 10-K) for the year ended December 31, 1998 have been audited by Ernst &
Young LLP, independent auditors, as set forth in their report thereon
incorporated herein by reference. The consolidated financial statements are
incorporated herein by reference in reliance upon such report given on the
authority of that firm as experts in accounting and auditing.
-12-
<PAGE>
================================================================================
We have not authorized any dealer, salesperson or any other person to
give any information or to represent anything not contained in this prospectus.
You must not rely on any unauthorized information. This prospectus does not
offer to sell or seek an offer to buy any shares in any jurisdiction where it is
unlawful. The information contained in this prospectus is correct only as of the
date of this prospectus, regardless of the time of the delivery of this
prospectus or any sale of the shares.
----------
TABLE OF CONTENTS
Page
----
Risk Factors........................................2
Additional or Updated Risk Factors..................9
Special Note Regarding Forward-Looking
Information......................................9
Where You Can Find More Information.................9
Use of Proceeds....................................10
Issuance of Common Stock and Warrants
to Selling Stockholders.........................10
Income Tax Considerations..........................10
Selling Stockholders...............................11
Plan of Distribution...............................11
Legal Matters......................................12
Experts............................................12
9,542,500 Shares
Common Stock
SICOR INC.
(formerly Gensia Sicor Inc.)
----------------------
PROSPECTUS
----------------------
----------------------
------------, 1999
======================================= ======================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the various expenses in connection with
the sale and distribution of the securities being registered hereby, other than
underwriting discounts and commissions. All amounts are estimated except the
Securities and Exchange Commission registration fee and the Nasdaq National
Market listing fee.
<TABLE>
<CAPTION>
Amount
---------
<S> <C>
SEC registration fee................................ $12,186.50
Blue Sky fees and expenses.......................... 1,000.00
Accounting fees and expenses........................ 10,000.00
Legal fees and expenses............................. 20,000.00
Registrar and transfer agent's fees................. 5,000.00
NNM listing fee..................................... 17,500.00
Miscellaneous fees and expenses..................... 4,313.50
----------
Total...................................... $70,000.00
==========
</TABLE>
Item 15. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, the Delaware GCL,
permits our board of directors to indemnify any person against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with any threatened,
pending or completed action, suit or proceeding in which such person is made a
party by reason of his being or having been a director, officer, employee or
agent of ours, in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended, the Act. The
Delaware GCL provides that indemnification pursuant to its provisions is not
exclusive of other rights of indemnification to which a person may be entitled
under any by-law, agreement, vote of stockholders or disinterested directors, or
otherwise.
Article IX of our Restated Certificate of Incorporation, as amended,
provides for indemnification of our directors, officers, employees and other
agents to the maximum extent permitted by law.
In addition, we have entered into separate indemnification agreements
with our directors and officers that will require us, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers to the fullest extent not prohibited
by law.
Item 16. Exhibits
Exhibit
Number Description of Document
------- -----------------------
4.1(1) Form of Unit Purchase Agreement between us and the selling
stockholders.
4.2(2) Form of Certificate for our common stock with rights legend.
5.1 Opinion of Pillsbury Madison & Sutro LLP regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
II-1
<PAGE>
23.3 Consent of Pillsbury Madison & Sutro LLP (included in its
opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (see page II-4).
- ----------
(1) Incorporated by reference to the our Quarterly Report on Form 10-Q for
the quarter ended June 30, 1999 (No. 0-18549).
(2) Incorporated by reference to the our Registration Statement on Form S-4
(No. 33-94778).
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, the Act, may be permitted to our directors,
officers and controlling persons pursuant to the foregoing provisions, or
otherwise, we have 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 us of
expenses incurred or paid by a director, officer or controlling person of ours
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, we will, unless in the opinion of our counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by us is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
We hereby undertake:
(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 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 this registration statement; and (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 (i) and (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 us pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934, as amended, the Exchange Act,
that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Act, each 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.
(4) For purposes of determining any liability under the Act,
each filing of our annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act which is incorporated by reference in this
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.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, we certify
that we have reasonable grounds to believe that we meet all of the requirements
for filing on Form S-3, and have duly caused this registration statement to be
signed on our behalf by the undersigned, thereunto duly authorized, in the City
of Irvine, State of California, November 15, 1999.
SICOR INC.
By /s/ John W. Sayward
------------------------------------------------
John W. Sayward
Executive Vice President, Finance,
Chief Financial Officer and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the person whose signature appears
below constitutes and appoints John W. Sayward and Wesley N. Fach and each of
them, his true and lawful attorneys-in-fact and agents, each 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 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, as fully to all intents and purposes as he
mightor could do in person, hereby ratifying and confirming all that each of
said attorneys-in-fact and agents or their 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 by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Carlo Salvi President and Chief Executive Officer November 15, 1999
- ------------------------------- ------------
Carlo Salvi (Principal Executive Officer) and
Director
Executive Vice President, Finance, Chief
/s/ John W. Sayward Financial Officer, and Treasurer November 15, 1999
- ------------------------------- ------------
John W. Sayward (Principal Financial and Principal
Accounting Officer) and Director
/s/ Donald E. Panoz Chairman of the Board of Directors November 15, 1999
- ------------------------------- ------------
Donald E. Panoz
</TABLE>
II-3
<PAGE>
Signature Title Date
--------- ----- ----
/s/ Frank C. Becker
- --------------------------------- Director November 15 , 1999
Frank C. Becker -----------------
/s/ Michael D. Cannon
- --------------------------------- Director November 15 , 1999
Michael D. Cannon -----------------
/s/ Gianpaolo Colla
- --------------------------------- Director November 15 , 1999
Gianpaolo Colla -----------------
/s/ Herbert J. Conrad
- --------------------------------- Director November 15 , 1999
Herbert J. Conrad -----------------
/s/ Carlos A. Ferrer
- --------------------------------- Director November 15 , 1999
Carlos A. Ferrer -----------------
/s/ Carlo Ruggeri
- --------------------------------- Director November 15 , 1999
Carlo Ruggeri -----------------
II-4
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description of Document
------- -----------------------
4.1(1) Form of Unit Purchase Agreement between us and the selling
stockholders.
4.2(2) Form of Certificate for our common stock with rights
legend.
5.1 Opinion of Pillsbury Madison & Sutro LLP regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.3 Consent of Pillsbury Madison & Sutro LLP (included in
its opinion filed as Exhibit 5.1 to this Registration
Statement).
24.1 Power of Attorney (see page II-4).
- --------------------
(1) Incorporated by reference to our Quarterly Report on Form 10-Q for the
quarter ended June 30, 1999 (No. 0-18549).
(2) Incorporated by reference to our Registration Statement on Form S-4
(No. 33-94778).
<PAGE>
Exhibit 5.1
PILLSBURY MADISON & SUTRO LLP
2550 Hanover Street
Palo Alto, California 94304
November 16, 1999
SICOR Inc.
19 Hughes
Irvine, CA 92618
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We are acting as counsel for SICOR Inc., a Delaware corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended, of 9,542,500 shares of Common Stock, par value $.01 per share
(the "Common Stock"), of the Company to be offered and sold by certain
stockholders of the Company (the Selling Stockholders") of which 8,675,000
shares are currently issued and outstanding (the "Issued Shares") and up to
867,500 shares are issuable upon the exercise of Warrants to be issued to
certain Selling Stockholders promptly following December 31, 2000 in
accordance with the terms of certain Unit Purchase Agreements, dated as of May
13, 1999, May 18, 1999, May 20, 1999 and June 7, 1999, between the Company and
the Selling Stockholders (the "Warrant Shares"). In this regard we have
participated in the preparation of a Registration Statement on Form S-3 relating
to such shares of Common Stock. Such Registration Statement, as amended, is
herein referred to as the "Registration Statement."
We are of the opinion that the Issued Shares to be offered and sold by
the Selling Stockholders have been duly authorized and legally issued, fully
paid and nonassessable and that the Warrant Shares to be offered and sold by the
Selling Stockholders have been duly authorized and, when issued and sold to the
Selling Stockholders by the Company in accordance with the terms of the Unit
Purchase Agreements, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement and to the use of our name under the caption "Legal
Matters" in the Registration Statement and in the prospectus included therein.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
[E-01885]
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of SICOR Inc. for
the registration of 9,542,500 shares of its common stock and to the
incorporation by reference therein of our report dated March 8, 1999, with
respect to the consolidated financial statements of SICOR Inc. included in its
Annual Report (Form 10-K) for the year ended December 31, 1998, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
San Diego, California
November 12, 1999
