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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 25, 1997
REGISTRATION NO. 333________
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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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ALLERGAN, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-01622442
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(Address of Principal Executive Offices)
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ALLERGAN, INC.
1989 INCENTIVE COMPENSATION PLAN
(Full Title of Plan)
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FRANCIS R. TUNNEY, JR., ESQ.
CORPORATE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ALLERGAN, INC.
2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 752-4500
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Securities to be Price Per Offering Registration
to be Registered Registered(1) Share(2) Price(2) Fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 5,000,000 shares $27.00 $135,000,000 $40,910
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(1) There is also being registered hereunder such additional undetermined
number of shares of Common Stock that may be issued from time to time as a
result of the anti-dilution provisions of the Plan.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rules 457(h) and 457(c) based on the average of the high and low prices
of the Common Stock of the Company as reported on April 22, 1997 on the New
York Stock Exchange.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Allergan, Inc.
(the "Company") relating to an additional 5,000,000 shares of the Company's
Common Stock, $.01 par value, in connection with the Allergan, Inc. 1989
Incentive Compensation Plan (the "Plan") and consists of only those items
required by General Instruction E to Form S-8.
INCORPORATION OF PREVIOUSLY FILED REGISTRATION STATEMENTS
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement on Form S-8, (Registration No. 33-29527) filed with the
Securities and Exchange Commission on August 3, 1989 and the contents of the
Registration Statement on Form S-8 (Registration No. 33-48908) filed with the
Securities and Exchange Commission on June 30, 1992, are incorporated herein by
reference and made a part hereof.
For purposes of this Registration Statement, any statement contained
in a document incorporated or deemed to be incorporated herein by reference
shall be deemed to be modified or superseded to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated herein by reference modifies or supersedes such
statement in such document. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "GCL")
provides that a Delaware corporation may indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation)
by reason of the fact that such person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses,
judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding if
he or she acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, had no cause to believe his or
her conduct was unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the corporation to procure a judgment in its favor by reason of the fact that
such person acted in any of the capacities set forth above, against expenses
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit if he or she acted under similar
standards, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
to the corporation unless and only to the extent that the court in which such
action or suit was brought shall determine that despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to be indemnified for such expenses which the
court shall deem proper.
Section 145 of the GCL further provides that to the extent a director
or officer of a corporation has been successful in the defense of any action,
suit or proceeding referred to in subsection (a) and (b) or in the defense of
any claim, issue or matter therein, such officer or director shall be
indemnified against expenses actually and reasonably incurred by him or her in
connection therewith; that indemnification provided for by Section 145 shall
not be deemed exclusive of any other rights to which the indemnified party may
be entitled; and that the corporation may purchase and maintain insurance on
behalf of a director or officer of the corporation against any liability
asserted against such officer or director and incurred by him or her in any
such capacity or arising out of his or her status as such, whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
2
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As permitted by Section 102(b)(7) of the GCL, the Company's
Certificate of Incorporation provides that a director shall not be liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director. However, such provision does not eliminate or limit the
liability of a director for acts or omissions not in good faith or for
breaching his or her duty of loyalty, engaging in intentional misconduct or
knowingly violating a law, paying a dividend or approving a stock repurchase
which was illegal, or obtaining an improper personal benefit.
The Company's Certificate of Incorporation also requires that
directors and officers be indemnified to the maximum extent permitted by
Delaware law. The Company has entered into indemnity agreements with each of
its directors and executive officers. These indemnity agreements require that
the Company pay on behalf of each director and officer party thereto any amount
that he or she is or becomes legally obligated to pay because of any claim or
claims made against him or her because of any act or omission or neglect or
breach of duty, including any actual or alleged error or misstatement or
misleading statement, which he or she commits or suffers while acting in his or
her capacity as a director and/or officer of the Company and solely because of
his or her being a director and/or officer. Under the General Corporation Law,
absent such an indemnity agreement, indemnification of a director or officer is
discretionary rather than mandatory (except in the case of a proceeding in
which a director or officer is successful on the merits). Consistent with the
Company's Bylaw provision on the subject, the indemnity agreements require the
Company to make prompt payment of defense and investigation costs and expenses
at the request of the director or officer in advance of indemnification,
provided that the recipient undertakes to repay the amounts if it is ultimately
determined that he or she is not entitled to indemnification for such expenses
and provided further that such advance shall not be made if it is determined
that the director or officer acted in bad faith or deliberately breached his or
her duty to the Company or its stockholders and, as a result, it is more likely
than not that it will ultimately be determined that he or she is not entitled
to indemnification under the terms of the indemnity agreement. The indemnity
agreements make the advance of litigation expenses mandatory absent a special
determination to the contrary, whereas under the General Corporation Law absent
such an indemnity agreement, such advance would be discretionary. Under the
indemnity agreement, the director or officer is permitted to petition the court
to seek recovery of amounts due under the indemnity agreement and to recover
the expenses of seeking such recovery if he or she is successful. Without the
indemnity agreement, the Company would not be required to pay or reimburse the
director or officer for his or her expenses in seeking indemnification recovery
against the Company. By the terms of the indemnity agreement, its benefits are
not available if the director or officer has other indemnification or insurance
coverage for the subject claim or, with respect to the matters giving rise to
the claim, (i) received a personal benefit, (ii) violated section 16(b) of the
Securities Exchange Act of 1934 or analogous provisions of law, or (iii)
committed certain acts of dishonesty. Absent the indemnity agreement,
indemnification that might be made available to directors and officers could be
changed by amendments to the Company's Certificate of Incorporation or Bylaws.
The Company has a policy of directors and officers liability insurance
that insures the Company and its directors and officers against damages,
settlements, and defense costs under certain circumstances.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated by reference
to Exhibit 3.1 to the Registration Statement on Form S-1 (Registration No.
33-28855) filed May 24, 1989)
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1995)
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<TABLE>
<S> <C>
4.3 Certificate of Designation, Preferences and Rights of Series A Participating
Preferred Stock as filed with the State of Delaware on May 22, 1989 (incorporated
by reference to Exhibit 4.1 to the Registration Statement on Form S-1
(Registration No. 33-28885) filed May 24, 1989)
4.4 Allergan, Inc. 1989 Incentive Compensation Plan, as amended and restated
(incorporated by reference to Exhibit A to the Company's Proxy Statement dated
March 18, 1996, filed in definitive form on March 14, 1996)
5 Opinion of Counsel (relating to legality of securities being registered)
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Counsel (included in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
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SIGNATURES
The Registrant. 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 Irvine, State of California, on April
22, 1997.
ALLERGAN, INC.
By: /s/ Susan J. Glass
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Susan J. Glass, Esq.
Associate General Counsel
and Assistant Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
SUSAN J. GLASS his or her true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent 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, as fully to all intents and purposes as he or she might or could
do in person, hereby ratifying and confirming all that said attorney-in-fact
and agent, or her 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 date indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ William C. Shepherd President, Chief Executive Officer
- ---------------------------------------- and Chairman of the Board (Principal April 22, 1997
William C. Shepherd Executive Officer)
/s/ A. J. Moyer Corporate Vice President and Chief
- ---------------------------------------- Financial Officer (Principal Financial April 22, 1997
A. J. Moyer Officer)
/s/ Dwight J. Yoder Senior Vice President and Controller
- ---------------------------------------- (Principal Accounting Officer) April 22, 1997
Dwight J. Yoder
/s Herbert W. Boyer
- ---------------------------------------- Director April 22, 1997
Herbert W. Boyer, Ph.D.
/s/ Tamara J. Erickson
- ---------------------------------------- Director April 22, 1997
Tamara J. Erickson
/s/ Handel E. Evans
- ---------------------------------------- Director April 22, 1997
Handel E. Evans
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<TABLE>
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SIGNATURE TITLE DATE
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<S> <C> <C>
- ---------------------------------------- Director April 22, 1997
Leonard D. Schaeffer
/s/ Henry Wendt
- ---------------------------------------- Director April 22, 1997
Henry Wendt
/s/ William R. Grant
- ---------------------------------------- Director April 22, 1997
William R. Grant
/s/ Howard E. Greene, Jr.
- ---------------------------------------- Director April 22, 1997
Howard E. Greene, Jr.
/s/ Gavin S. Herbert Chairman Emeritus
- ---------------------------------------- Director April 22, 1997
Gavin S. Herbert
/s/ Lester J. Kaplan
- ---------------------------------------- Director April 22, 1997
Lester J. Kaplan, Ph.D.
- ---------------------------------------- Director April 22, 1997
Louis T. Rosso
/s/ Leslie G. McCraw
- ---------------------------------------- Director April 22, 1997
Leslie G. McCraw
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3.1 to the Registration Statement on Form S-1
(Registration No. 33-28855) filed May 24, 1989)
4.2 Bylaws of the Company (incorporated by reference to Exhibit 3 to the
Company's Quarterly Report on Form 10-Q for the quarter ended June 30,
1995)
4.3 Certificate of Designation, Preferences and Rights of Series A
Participating Preferred Stock as filed with the State of Delaware on
May 22, 1989 (incorporated by reference to Exhibit 4.1 to the
Registration Statement on Form S-1 (Registration No. 33-28885) filed
May 24, 1989)
4.4 Allergan, Inc. 1989 Incentive Compensation Plan, as amended and
restated (incorporated by reference to Exhibit A to the Company's Proxy
Statement dated March 18, 1996, filed in definitive form on March 14,
1996)
5 Opinion of Counsel (relating to legality of securities being
registered)
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Counsel (included in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
</TABLE>
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Exhibit 5
ALLERGAN
2525 Dupont Drive
P.O. Box 19534
Irvine, CA 92713-9534
(714) 752-4500
Susan J. Glass, Esq.
Associate General Counsel
and Assistant Secretary
Direct: (714) 246-6912
Fax: (714) 246-4774
April 23, 1997
Allergan, Inc.
2525 Dupont Drive
Irvine, CA 92612
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
I am the Associate General Counsel and Assistant Secretary of Allergan,
Inc. (the "Company"), and in such capacity have participated in the
preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission to
register an aggregate of 5,000,000 shares of common stock, $.01 par
value (the "Common Stock") of the Company. Such shares are issuable as
needed pursuant to the Allergan, Inc. 1989 Incentive Compensation Plan
(the "Plan").
In rendering this opinion, I have made such inquiries and examined,
among other things, originals or copies, certified or otherwise
identified to my satisfaction, of such records, agreements,
certificates, instruments and other documents as I have considered
necessary or appropriate for purposes of this opinion. With respect to
certain factual matters, I have relied upon an officer's certificate.
For the purposes of my examination, I have assumed the genuineness of
all signatures on original documents and the conformity to original
documents of all copies submitted to me.
On the basis of and relying upon the foregoing examination and
assumptions, I am of the opinion that the shares of Common Stock
issuable by the Company pursuant to the Plan,
<PAGE> 2
Allergan, Inc.
April 23, 1997
Page 2
when issued in accordance with the Registration Statement and the Plan, will be
validly issued, fully paid and nonassessable.
I am admitted to practice law in the State of California; however, I am
generally familiar with the Delaware General Corporation Law as presently in
effect, and have made such inquiries as I consider necessary to render the
opinions set forth herein relating to Delaware law. Except with respect to the
present general corporation laws of the State of Delaware, this opinion is
limited to the present laws of the United States of America and the State of
California and the present judicial interpretations thereof. No opinion is
expressed by me as to the effect of the laws of any other jurisdiction or as to
matters of conflict or choice of law. I undertake no obligation to advise you
as a result of developments occurring after the date hereof or as a result of
facts or circumstances brought to my attention after the date hereof.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ SUSAN J. GLASS
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Susan J. Glass
Associate General Counsel
and Assistant Secretary
SJG/lr
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EXHIBIT 23.1
The Board of Directors
Allergan, Inc.
We consent to the use of our report incorporated herein by reference.
KPMG PEAT MARWICK LLP
Costa Mesa, California
April 23, 1997
