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As filed with the Securities and Exchange Commission on June 26, 1995
Registration No. 33-________________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SEQUUS PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 7391 94-3031934
(State or Other Jurisdiction (Primary Standard Industrial (I.R.S. Employer
of Incorporation) Classification Code Number) Identification Number)
960 Hamilton Court
Menlo Park, California 94025
(415) 323-9011
(Address of Registrant's Principal Executive Offices)
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1987 EMPLOYEE STOCK OPTION PLAN
1987 CONSULTANT STOCK OPTION PLAN
1990 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
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JOSEPH M. LIMBER
Executive Vice President and Acting Chief Operating Officer
SEQUUS Pharmaceuticals, Inc.
960 Hamilton Court
Menlo Park, California 94025
(415) 323-9011
(Name and Address of Agent for Service)
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COPY TO:
CHRISTOPHER L. KAUFMAN
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111-2562
(415) 391-0600
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
Title of Each Class of to be Offering Price Offering Registration
Securities to be Registered Registered Per Share(1) Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock $.0001 par value. . . . . . . . . . . . . 2,650,000 $7.66 $20,304,838 $7002
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<FN>
(1) Estimated solely for purposes of calculating the registration fee
pursuant to (i) Rule 457(h) on the basis of the average per share
exercise price ($7.65) at which options to purchase an aggregate of
2,509,226 shares of the Registrant's Common Stock registered hereunder
may be exercised and (ii) Rule 457(c) for the remaining 140,744 shares
of the Registrant's Common Stock registered hereunder, based on the
average of the high and low trading prices on the Nasdaq National
Market of the Registrant's Common Stock on June 23, 1995 as reported
on the Nasdaq National Market ($7.875).
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 1. PLAN INFORMATION
In accordance with the General Instructions to the Form S-8
adopted by the Commission, the contents of this item have been omitted from the
Registration Statement filed with the Commission.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
In accordance with the General Instructions to the Form S-8
adopted by the Commission, the contents of this item have been omitted from the
Registration Statement filed with the Commission.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents which have been filed with the Commission
by SEQUUS Pharmaceuticals, Inc. (formerly, Liposome Technology, Inc.)(the
"Company") are hereby incorporated by reference in this Registration Statement:
(a) The Annual Report of the Company on Form 10-K for the fiscal
year ended December 31, 1994, as amended by the Form
10-K/A-1 and the Form 10-K/A-2;
(b) The Company's Quarterly Report for the period ended March
31, 1995;
(c) The Company's Report on Form 8-K filed with the Commission
on June 26, 1995; and
(d) The Description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A filed on
May 8, 1987 pursuant to Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of 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 in this
Registration Statement and to be part hereof from the date of filing such
documents.
Any statement contained in a document incorporated or deemed to
be incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has the power, pursuant to Section 145 of the
Delaware General Corporation Law, to limit the liability of its directors from
certain breaches of fiduciary duty and to indemnify its directors, officers and
other persons for certain acts.
Articles NINTH and TENTH of the Company's Restated Certificate of
Incorporation provide as follows:
"NINTH: A director of the corporation shall not be personally
liable to the corporation 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 of loyalty to the corporation 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. If the
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Delaware General Corporation Law is amended hereafter to authorize corporate
action further eliminating or limiting the personal liability of directors, then
the liability of a director of the corporation shall be eliminated or limited to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the corporation shall not adversely affect any right or
protection of a director of the corporation existing at the time of such repeal
or modification.
TENTH:
A. RIGHT TO INDEMNIFICATION
Each person who was or is made a party or is threatened to be
made a party to or is involved in any action, suit or proceeding, whether civil,
criminal, administrative or investigative ("proceeding"), by reason of the fact
that he or she or a person of whom he or she is the legal representative, is or
was a director or officer, employee or agent of the corporation or is or was
serving at the request of the corporation as a director or officer, employee or
agent of another corporation, or of a partnership, joint venture, trust or other
enterprise, including service with respect to employee benefit plans, whether
the basis of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless by
the corporation to the fullest extent authorized by the Delaware General
Corporation Law, as the same exists or may hereafter be amended, (but, in the
case of any such amendment, only to the extent that such amendment permits the
corporation to provide broader indemnification rights than said Law permitted
the corporation to provide prior to such amendment) against all expenses,
liability and loss including attorneys' fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid or to be paid in settlement reasonably
incurred or suffered by such person in connection therewith and such
indemnification shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of his or her heirs,
executors and administrators; PROVIDED, HOWEVER, that the corporation shall
indemnify any such person seeking indemnity in connection with an action, suit
or proceeding (or part thereof) initiated by such person only if such action,
suit or proceeding (or part thereof) was authorized by the board of directors of
the corporation. Such right shall be a contract right and shall include the
right to be paid by the corporation expenses incurred in defending any such
proceeding in advance of its final disposition; PROVIDED, HOWEVER, that the
payment of such expenses incurred by a director or officer of the corporation in
his or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of such proceeding, shall be made only upon delivery to
the corporation of an undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it should be determined ultimately that such
director or officer is not entitled to be indemnified under this Section or
otherwise.
B. RIGHT OF CLAIMANT TO BRING SUIT
If a claim under Paragraph A of Article TENTH is not paid in full
by the corporation within ninety (90) days after a written claim has been
received by the corporation, the claimant may at any time thereafter bring suit
against the corporation to recover the unpaid amount of the claim and, if
successful in whole or in part, the claimant shall be entitled to be paid also
the expense of prosecuting such claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for expenses incurred in
defending any proceeding in advance of its final disposition where the required
undertaking, if any, has been tendered to this corporation) that the claimant
has not met the standards of conduct which make it permissible under the
Delaware General Corporation Law for the corporation to indemnify the claimant
for the amount claimed, and the burden of proving that such standards were met
shall be on the claimant. Neither the failure of the corporation (including its
board of directors, independent legal counsel, or its stockholders) to have made
a determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in the Delaware General Corporation
Law, nor an actual determination by the corporation (including its board of
directors, independent legal counsel, or its stockholders) that the claimant has
not met such applicable standard of conduct, shall be a defense to the action or
create a presumption that claimant has not met the applicable standard of
conduct.
C. NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by Paragraphs A and B of
Article TENTH shall not be exclusive of any other right which such persons may
have or hereafter acquire under any statute, provision of the Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
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D. INSURANCE
The corporation may maintain insurance, at its expense, to
protect itself and any such director, officer, employee or agent of the
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expense, liability or loss, whether or not the
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. TABLE OF EXHIBITS
3.1 Registrant's Restated Certificate of Incorporation (1)
3.1.1 Certificate of Ownership and Merger of SEQUUS
Pharmaceuticals, Inc. into Liposome Technology, Inc. (1)
3.2 Registrant's Bylaws (2)
5 Opinion of Latham & Watkins
23.1 Consent of Independent Auditors
23.2 Consent of Latham & Watkins (included in Exhibit 5)
24 Powers of Attorney (incorporated in the signature page to
Registration Statement (see page II-5))
- ----------
(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-3 filed on June 26, 1995.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-43672).
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(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; and
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) shall not apply to
information contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities and Exchange Act of 1934 that are
incorporated by reference in this 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) To remove from registration by means of a post-
effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, 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.
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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 Menlo Park, State of California on June 26, 1995.
SEQUUS PHARMACEUTICALS, INC.
By /s/ NICOLAOS V. ARVANITIDIS
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Nicolaos V. Arvanitidis
CHAIRMAN OF THE BOARD AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Nicolaos V.
Arvanitidis and Sally A. Davenport, and each of them, with full power of
substitution and full power to act without the other, his true and lawful
attorney-in-fact and agent to act for him in his name, place and stead, in any
and all capacities, to sign any or all amendments to this registration statement
on Form S-8, 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 and about the premises in order to effectuate the same
as fully, to all intents and purposes, as they or he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, 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 each of the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ NICOLAOS V. ARVANITIDIS Chairman of the Board and June 26, 1995
- ---------------------------- Chief Executive Officer
(Nicolaos V. Arvanitidis)
/s/ DONALD J. STEWART
- ---------------------------- Vice President, Finance June 26, 1995
(Donald J. Stewart) (Principal Accounting Officer
and Acting Principal
Financial Officer)
/s/ ROBERT G. FARIS
- ---------------------------- Director June 26, 1995
(Robert G. Faris)
/s/ ROBERT B. SHAPIRO
- ---------------------------- Director June 26, 1995
(Robert B. Shapiro)
/s/ I. CRAIG HENDERSON Director June 26, 1995
- ----------------------------
(I. Craig Henderson)
/s/ RICHARD C.E. MORGAN Director June 26, 1995
- ----------------------------
(Richard C.E. Morgan)
/s/ E. DONNALL THOMAS
- ---------------------------- Director June 26, 1995
(E. Donnall Thomas)
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EXHIBIT INDEX
3.1 Registrant's Restated Certificate of Incorporation (1)
3.1.1 Certificate of Ownership and Merger of SEQUUS
Pharmaceuticals, Inc. into Liposome
Technology, Inc. (1)
3.2 Registrant's Bylaws (2)
5 Opinion of Latham & Watkins
23.1 Consent of Independent Auditors
23.2 Consent of Latham & Watkins (included in Exhibit 5)
24 Powers of Attorney (incorporated in the signature page to
Registration Statement (see page II-5))
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(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-3 filed on June 26, 1995.
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (F
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Exhibit 5
[LATHAM & WATKINS LETTERHEAD]
June 26, 1995
SEQUUS Pharmaceuticals, Inc.
960 Hamilton Court
Menlo Park, California 94025
Re: SEQUUS Pharmaceuticals, Inc. - Common Stock $.0001 Par Value
-------------------------------------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-8 (the "Registration Statement") which SEQUUS Pharmaceuticals, Inc.
(formerly, Liposome Technology, Inc.), a Delaware corporation (the "Company"),
intends to file with the Securities and Exchange Commission on June 26, 1995 in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 2,650,000 shares of Common Stock, par value of $.0001 per
share (the "Shares") to be sold by the Company under the 1987 Employee Stock
Option Plan, 1987 Consultant Stock Option Plan and 1990 Director Stock Option
Plan (collectively, the "Plans"). We are familiar with the proceedings
undertaken and to be taken in connection with the authorization, issuance and
sale of the Shares. Additionally, we have examined such questions of law and
fact as we have considered necessary or appropriate for purposes of this
opinion.
Based upon the foregoing, we are of the opinion that the Shares
have been duly authorized, and upon issuance of the Shares under the terms of
the Plans and delivery and payment therefor of legal consideration in excess of
the aggregate par value of the Shares issued, such Shares will be validly
issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ LATHAM & WATKINS
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) and related Prospectus pertaining to the registration of 2,650,000 shares
of SEQUUS Pharmaceuticals, Inc.'s (formerly Liposome Technology, Inc.) common
stock under the 1987 Employee Stock Option Plan, 1987 Consultant Stock Option
Plan and 1990 Director Stock Option Plan and related Prospectus of SEQUUS
Pharmaceuticals, Inc. (formerly Liposome Technology, Inc.) of our report dated
February 10, 1995, except as to Note 7, as to which the date is March 30, 1995,
with respect to the financial statements of SEQUUS Pharmaceuticals, Inc.
(formerly Liposome Technology, Inc.) included in its Annual Report (Form 10-K)
for the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 22, 1995
