<PAGE> 1
As filed with the Securities and Exchange Commission on June 26, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ADVANCED POLYMER SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2875566
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3696 Haven Avenue, Redwood City, California 94063
(Address of Principal Executive Offices)
1992 Stock Plan
(Full Title of the Plan)
Michael P.J. O'Connell
Chief Financial Officer
Advanced Polymer Systems, Inc.
3696 Haven Avenue
Redwood City, California 94063
(Name and Address of Agent For Service)
(415) 366-2626
(Telephone Number, Including Area Code, of Agent For Service)
Copy to: Richard A. Peers, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(415) 324-7000
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration
per Share (1) Price Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 750,000 $9.38 $7,035,000 $2,426.00
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of computing the amount of registration
fee pursuant to Rule 457(c) under the Securities Act, as amended, based on
the average of the high and low prices of the Registrant's Common Stock
reported on the NASDAQ National Market on June 21, 1996.
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated by
reference in this registration statement:
(a) The registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995;
(b) The registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 1996;
(c) The description of the Common Stock of the registrant contained in
the registrant's registration statement on Form 8-A filed with the Commission on
August 7, 1987 pursuant to Section 12 of the Exchange Act of 1934, as amended
(the "Exchange Act"); and
(d) The 1992 Stock Plan, as amended, filed as an Exhibit to the
registrant's Notice of 1996 Annual Meeting of Stockholders and Proxy Statement
filed with the Commission on April 26, 1996.
(e) All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Section B of Article VI of the
registrant's Certificate of Incorporation provides:
"(1) 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
(hereinafter a "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, of the Corporation or is or was serving at the request of the
Corporation, as a director, 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 General
Corporation Law of the State of Delaware, 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 expense, 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 indemnification in connection with
a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the
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<PAGE> 3
board of directors of the Corporation. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however,
that, if the General Corporation Law of the State of Delaware requires, the
payment of such expenses incurred by a director or officer 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 a 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 shall
ultimately be determined that such director or officer is not entitled to
be indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(2) Non-Exclusivity of Rights. The right to indemnification and the
payment of expenses incurred in defending a proceeding in advance of its
final disposition conferred in this Section B shall not be exclusive of any
other rights which any person may have or hereafter acquire under any
statute, provisions of this Certificate of Incorporation, Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
(3) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any 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 Delaware General Corporation Law."
Registrant maintains directors' and officers' liability insurance in
the amount of $5,000,000 which covers civil liabilities. Such insurance helps
the Registrant to attract qualified officers and directors, by providing a means
for the Company to pay the costs and expenses involved in the event civil
litigation is brought against one of the Registrant's officers or directors.
ITEM 8. EXHIBITS
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of KPMG Peat Marwick LLP
23.3 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
24.1 Power of Attorney (see page II-3)
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;
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<PAGE> 4
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (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;
(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) 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 the registrant pursuant to
Section 13 or 15(d) of the Exchange Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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 liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act 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
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 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.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Redwood City, State of California, on this 26th day
of June, 1996.
ADVANCED POLYMER SYSTEMS, INC.
By:/s/ Michael P.J. O'Connell
-------------------------------------
Michael P.J. O'Connell
Chief Financial Officer
(Principal Financial and Accounting
Officer)
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint John J. Meakem, Jr. and Michael
P.J. O'Connell, or either of them, with full power of substitution, such
person's true and lawful attorneys-in-fact and agents for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective 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 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 he or such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
/s/ John J. Meakem, Jr. Chairman of the Board June 26, 1996
- -------------------------- and President (Principal
John J. Meakem, Jr. Executive Officer)
/s/ Michael P.J. O'Connell Chief Financial Officer June 26, 1996
- -------------------------- (Principal Financial and
Michael P.J. O'Connell Accounting Officer)
/s/ Carl Ehmann Director June 26, 1996
- --------------------------
Carl Ehmann
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<PAGE> 6
/s/ Jorge Heller Director June 26, 1996
- --------------------------
Jorge Heller
/s/ Helen C. Leong Director June 26, 1996
- --------------------------
Helen C. Leong
/s/ Peter Riepenhausen Director June 26, 1996
- --------------------------
Peter Riepenhausen
/s/ Toby Rosenblatt Director June 26, 1996
- --------------------------
Toby Rosenblatt
/s/ Gregory H. Turnbull Director June 26, 1996
- --------------------------
Gregory H. Turnbull
/s/ Dennis Winger Director June 26, 1996
- --------------------------
Dennis Winger
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<PAGE> 7
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Item No. Description of Item Numbered Page
- -------- ------------------- -------------
<CAPTION>
<S> <C> <C>
5 Opinion of Heller Ehrman White & McAuliffe......................................
23.1 Consent of KPMG Peat Marwick LLP................................................
23.3 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5) ..................................................
24.1 Power of Attorney (see page II-3) ..............................................
</TABLE>
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<PAGE> 1
EXHIBIT 5
June 26, 1996
10008-0006
Advanced Polymer Systems, Inc.
3696 Haven Avenue
Redwood City, California
94063
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Advanced Polymer Systems, Inc., a
Delaware corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which the Company proposes
to file with the Securities and Exchange Commission on June 26, 1996 for the
purpose of registering under the Securities Act of 1933, as amended, an
additional 750,000 shares of its Common Stock, par value $.01 (the "Shares").
The Shares are issuable under the Company's 1992 Stock Plan (the "Plan").
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following
records, documents and instruments:
(a) The Certificate of Incorporation of the Company, certified
by the Delaware Secretary of State as of May 1, 1996, and certified
to us by an officer of the Company as being complete and in full force
as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of
the Company as being complete and in full force and effect as of the
date of this opinion;
(c) A Certificate of an officer of the Company (i) attaching
records certified to us as constituting all records of proceedings and
actions of the Board of Directors, including any committee thereof, and
stockholders of the Company relating to the Shares, and the
Registration Statement, and (ii) certifying as to certain factual
matters;
<PAGE> 2
Advanced Polymer Systems, Inc.
June 19, 1996 Page 2
(d) The Registration Statement;
(e) The Plan; and
(f) A letter from The First National Bank of Boston, the
Company's transfer agent, dated June 25, 1996, as to the number of
shares of the Company's common stock that were outstanding on June 24,
1996.
This opinion is limited to the federal law of the United
States of America and the General Corporation Law of the State of Delaware, and
we disclaim any opinion as to the laws of any other jurisdiction. We further
disclaim any opinion as to any other statute, rule, regulation, ordinance, order
or other promulgation of any other jurisdiction or any regional or local
governmental body or as to any related judicial or administrative opinion.
Based upon the foregoing and our examination of such questions
of law as we have deemed necessary or appropriate for the purpose of this
opinion, and assuming that (i) the Registration Statement becomes and remains
effective during the period when the Shares are offered and issued, (ii) the
full consideration stated in the Plan is paid for each Share and that such
consideration in respect of each Share includes payment of cash or other lawful
consideration at least equal to the par value thereof, (iii) appropriate
certificates evidencing the Shares are executed and delivered by the Company,
and (iv) all applicable securities laws are complied with, it is our opinion
that when issued and sold by the Company, after payment therefore in the manner
provided in the Plan and the Registration Statement, the Shares will be legally
issued, fully paid and nonassessable.
This opinion is rendered to you in connection with the
Registration Statement and is solely for your benefit. This opinion may not be
relied upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity for any purpose, without our prior written
consent. We disclaim any obligation to advise you of any change of law that
occurs, or any facts of which we may become aware, after the date of this
opinion.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
Heller, Ehrman, White & McAuliffe
<PAGE> 1
Exhibit 23.1
CONSENT OF KPMG PEAT MARWICK LLP
The Board of Directors
Advanced Polymer Systems, Inc.
We consent to the use of our report incorporated herein by reference.
KPMG Peat Marwick LLP
San Francisco, California
June 26, 1996
