<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 29, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
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 NONEMPLOYEE DIRECTOR STOCK 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) 246-4500
(Name, address and telephone number, including area code, of agent for service)
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED AMOUNT OF
MAXIMUM MAXIMUM REGISTRATION
AMOUNT OFFERING AGGREGATE FEE(2)
TITLE OF SECURITIES TO BE PRICE PER OFFERING
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE(2)
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 50,000 SHARES $59.3125 $2,965,625 $874.86
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</TABLE>
(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 September 22, 1998 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 50,000 shares of the Company's Common
Stock, $.01 par value ("Common Stock"), in connection with the Allergan, Inc.
1989 Nonemployee Director Stock Plan (the "Plan") and consists of only those
items required by General Instruction E to Form S-8.
INCORPORATION OF PREVIOUSLY FILED REGISTRATION STATEMENT
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 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 incororated 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 consitute 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 (including attorneys'
fees), 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 reasonable 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
(including attorneys' fees) 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 present or
former 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 person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person 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.
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
2
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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 GCL, 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 GCL 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.
EXHIBIT
NUMBER DESCRIPTION
------ -----------
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)
3
<PAGE> 4
4.4 Allergan, Inc. 1989 Nonemployee Director Stock Plan, as
amended and restated (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 27, 1998)
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)
4
<PAGE> 5
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 September 28,
1998.
ALLERGAN, INC.
By: /s/ Susan J. Glass
-------------------------------
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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ David E. I. Pyott President and Chief Executive September 28, 1998
- --------------------------------- Officer (Principal
David E. I. Pyott Executive Officer)
/s/Herbert W. Boyer, Ph. D. Chairman of the Board September 28, 1998
- ---------------------------------
Herbert W. Boyer, Ph. D.
/s/Francis R. Tunney, Jr. Corporate Vice President, General September 28, 1998
- --------------------------------- Counsel and Secretary (Principal
Francis R. Tunney, Jr. Financial Officer)
/s/ Dwight J. Yoder Senior Vice President and September 28, 1998
- --------------------------------- Controller (Principal Accounting
Dwight J. Yoder Officer)
/s/ Gavin S. Herbert Chairman Emeritus September 28, 1998
- --------------------------------- Director
Gavin S. Herbert
/s/ William R. Grant Director September 28, 1998
- ---------------------------------
William R. Grant
</TABLE>
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<TABLE>
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/Lester J. Kaplan, Ph.D Director September 28, 1998
- ---------------------------------
Lester J. Kaplan, Ph.D.
/s/ Louis T. Rosso Director September 28, 1998
- ---------------------------------
Louis T. Rosso
/s/ Leonard D. Schaeffer Director September 28, 1998
- ---------------------------------
Leonard D. Schaeffer
/s/ Henry Wendt Director September 28, 1998
- ---------------------------------
Henry Wendt
</TABLE>
<PAGE> 7
EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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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 Nonemployee Director Stock Plan, as
amended and restated (incorporated by reference to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
quarter ended March 27, 1998)
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)
<PAGE> 1
Exhibit 5
ALLERGAN
2525 Dupont Drive
P.O. Box 19534
Irvine, CA 92623-9534
(714) 246-4500
Susan J. Glass, Esq.
Associate General Counsel
and Assistant Secretary
Direct: (714) 246-6912
Fax: (714) 246-4774
September 28, 1998
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 50,000
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 Nonemployee
Director Stock 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.
<PAGE> 2
Allergan, Inc.
September 28, 1998
Page 2
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, when issued in accordance with the Registration Statement of 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
maters 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,
Susan J. Glass
Associate General Counsel
and Assistant Secretary
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Allergan, Inc.
We consent to the use of our reports dated January 27, 1998, incorporated
herein by reference in the Registration Statement on Form S-8 of Allergan,
Inc., relating to the consolidated balance sheets of Allergan, Inc. and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of earnings, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1997, and the related
schedule.
KPMG PEAT MARWICK LLP
Costa Mesa, California
September 28, 1998
