As filed with the Securities and Exchange Commission on July 25, 1997
Registration No. 333-29863
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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PRE-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Agouron Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
California 33-0061928
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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10350 North Torrey Pines Road, La Jolla, California 92037
(619) 622-8000
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Peter Johnson
President and Chief Executive Officer
AGOURON PHARMACEUTICALS, INC.
10350 North Torrey Pines Road, La Jolla, California 92037
(619) 622-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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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 Stockholders.
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, 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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed maximum
offering price
Title of each class of securities to be Amount to be per share(1) Proposed maximum Amount of
registered registered aggregate offering registration
price(1) fee(2)
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<S> <C> <C> <C> <C>
Common Stock, no par value.......... 197,056 $85.375 $16,823,656 $5,098.08
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<FN>
(1) Calculated in accordance with Rule 457(c) under the Securities Act of 1933.
(2) Registration fee has been previously paid.
</FN>
</TABLE>
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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.
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<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the expenses, other than underwriting
discounts and commissions, payable by the Company in connection with the sale of
the Common Stock being registered. All amounts shown are estimates, except the
registration fee.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Registration Fee................... $ 5,098.08
Accounting Fees and Expenses ........................................ 2,000.00
Miscellaneous......................................................... 5,000.00
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$ 12,098.08
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</TABLE>
Item 15. Indemnification of Directors and Officers
Section 317 of the California General Corporation Law generally
provides indemnification to officers and directors of the Company against
expenses, judgments, fines and amounts paid in settlement under certain
conditions and subject to certain limitations.
Article VII of the articles of incorporation of the Company provides
that liability of the directors of the Company for monetary damages shall be
eliminated to the fullest extent permissible under California law. Further,
Article VIII of the articles of incorporation authorizes the Company to provide
indemnification of agents (as defined in Section 317) for breach of duty to the
Company and its shareholders through bylaw provisions or through agreements with
such agents, or both, in excess of the indemnification otherwise permitted by
Section 317, subject to the limits on such excess indemnification set forth in
Section 317.
Section 3.15 of the bylaws of the Company authorizes the Company to
indemnify any person who was or is a party, or is threatened to be made a party,
to any proceeding (other than actions by or in the right of the Company to
procure a judgment in its favor) by reason of the fact that such person is or
was an agent of the Company, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Company. Section 3.15
also authorizes the Company to indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or completed action by
or in the right of the Company to procure a judgment in its favor by reason of
the fact that such person is or was an agent of the Company against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action if such person acted in good faith.
Any indemnification under Section 3.15 is to be made by the Company
only if authorized in the specific case upon determination that indemnification
of the agent is proper in the circumstances because the agent has met the
applicable standard of conduct required by Paragraphs 3.15.2 or 3.15.3 of the
bylaws.
Pursuant to authorization provided under the articles of incorporation
and the bylaws, the Company has entered into indemnification agreements with
each of its present directors. The Company has also entered into similar
agreements with certain of the Company's officers who are not directors.
Generally, the indemnification agreements attempt to provide the maximum
protection permitted by California law as it may be amended from time to time.
Moreover, the indemnification agreements provide for certain additional
indemnification. Under such additional indemnification provisions, however, an
individual will not receive indemnification for judgments, settlements or
expenses if he or she is found liable to the Company (except to the extent the
court determines he or she is fairly and reasonably entitled to indemnity for
expenses) for settlements not approved by the Company or for settlements and
expenses if the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order to
receive an advance of expenses, the individual must submit to the Company copies
of invoices presented to him or her for such expenses. Also, the individual must
repay such advances upon a final judicial decision that he or she is not
entitled to indemnification.
Section 3.15 of the bylaws also provides that, in the event of a
determination by the Board of Directors of the Company to purchase insurance for
certain of its agents, the Company shall purchase and maintain insurance on
behalf of any such agent against liability asserted against or incurred by the
agent in such capacity or arising out of the agent's status, whether or not the
Company would have the power to indemnify the agent against such liability under
the provisions of Section 3.15.
The Company has in effect directors and officers liability insurance
policies which insure directors and officers of the Company. The policies expire
on October 13, 1997. Although the Company intends to renew the policies on or
before their expiration date, there can be no assurance that the policies will
be renewed on terms acceptable to the Company. Under the policies, the directors
and officers of the Company are insured against loss arising from claims made
against them due to wrongful acts while acting in their individual and
collective capacities as directors and officers, subject to certain exclusions.
In addition, the policies
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<PAGE>
insure the Company against losses for which its directors and officers are
entitled to indemnification, subject to a retention of $250,000 payable by the
Company. The policies are "claims made" policies and provide coverage only for
losses arising out of claims first made against the Company and reported to the
insurer during the policy period.
Item 16. Exhibits
EXHIBIT
NUMBER
5.1* Opinion of Gary E. Friedman, Esq.
23.1 Consent of Independent Accountants.
23.2* Consent of Gary E. Friedman, Esq. (contained in
Exhibit 5.1).
24.1* Power of Attorney (contained on signature page of the
Registration Statement).
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* Previously filed.
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
registrant, pursuant to the foregoing provisions, 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 Securities 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 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 registrant 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 registrant 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.
(2) For the purpose of determining any liability under the Securities
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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant'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 Act) 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.
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-3 and has duly caused this amendment to
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Diego, State of California, on the 25th day
of July, 1997.
AGOURON PHARMACEUTICALS, INC.
By: /s/ Steven S. Cowell
Steven S. Cowell
Corporate Vice President, Finance
and Chief Financial Officer
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
* Peter Johnson President, Chief Executive July 25, 1997
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Peter Johnson Officer and Director
/s/ Steven S. Cowell Corporate Vice President, Finance July 25, 1997
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Steven S. Cowell and Chief Financial Officer
* Gary E. Friedman Corporate Vice President, General July 25, 1997
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Gary E. Friedman Counsel, Secretary and Director
* John N. Abelson Director July 25, 1997
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John N. Abelson
* Patricia M. Cloherty Director July 25, 1997
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Patricia M. Cloherty
* A.E. Cohen Director July 25, 1997
A.E. Cohen
* Michael E. Herman Director July 25, 1997
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Michael E. Herman
* Irving S. Johnson Director July 25, 1997
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Irving S. Johnson
* Antonie T. Knoppers Director July 25, 1997
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Antonie T. Knoppers
* Melvin I. Simon Director July 25, 1997
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Melvin I. Simon
*By: /s/ Steven S. Cowell July 25, 1997
-----------------------------------
Steven S. Cowell
</TABLE>
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<PAGE>
EXHIBIT INDEX
5.1* Opinion of Gary E. Friedman, Esq.
23.1 Consent of Independent Accountants.
23.2* Consent of Gary E. Friedman, Esq. (contained in
Exhibit 5.1).
24.1* Power of Attorney (contained on signature page of the
Registration Statement).
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* Previously filed.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
August 7, 1996 appearing on page F-1 of Agouron Pharmaceuticals, Inc.'s Annual
Report on Form 10-K for the year ended June 30, 1996. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE LLP
San Diego, California
July 25, 1997
