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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 11, 1999
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.
STOCK PRICE INCENTIVE 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)
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CALCULATION OF REGISTRATION FEE
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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 SHARE PRICE(1) FEE(1)
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<S> <C> <C> <C> <C>
COMMON STOCK, $.01 PAR VALUE 18,431 SHARES $64.75 $1,193,407.25 $352.06
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(1) 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 January 5, 1999 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 18,431 shares of the Company's Common Stock, $.01 par
value ("Common Stock"), issuable to certain employees of the Company under the
Stock Price Incentive Plan (the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the Company
with the Securities and Exchange Commission, are incorporated herein by
reference and made a part hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 27, 1998;
(c) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 26, 1998;
(d) The Company's Quarterly Report on Form 10-Q for the quarter
ended September 25, 1998;
(e) The Company's Current Report on Form 8-K filed June 9, 1998;
(f) The Company's Current Report on Form 8-K filed June 25, 1998;
and
(g) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-28855), 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 Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement and prior to the
filing of a post-effective amendment hereto that indicates that all securities
offered hereunder have been sold or that deregisters all securities then
remaining unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the date of filing of such documents.
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 that 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.
2
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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
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
3
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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)
4.4 Allergan, Inc. Stock Price Incentive Plan, (incorporated by
reference to Exhibit 10.21 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997)
5 Opinion of Counsel (relating to legality of securities being
registered)
23.1 Consent of KPMG LLP
23.2 Consent of Counsel (included in Exhibit 5 hereto)
24 Power of Attorney (contained on signature page hereto)
4
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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 January 5,
1999.
ALLERGAN, INC.
By: /s/ FRANCIS R. TUNNEY, JR.
-----------------------------------
Francis R. Tunney, Jr.
Corporate Vice President,
General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
FRANCIS R. TUNNEY, JR. 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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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David E. I. Pyott President and Chief Executive January 5, 1999
- --------------------------------- Officer (Principal Executive
David E. I. Pyott Officer)
/s/Herbert W. Boyer, Ph. D. Chairman of the Board January 5, 1999
- ---------------------------------
Herbert W. Boyer, Ph. D.
/s/Francis R. Tunney, Jr. Corporate Vice President, General January 5, 1999
- --------------------------------- Counsel and Secretary (Principal
Francis R. Tunney, Jr. Financial Officer)
/s/ Dwight J. Yoder Senior Vice President and January 5, 1999
- --------------------------------- Controller (Principal Accounting
Dwight J. Yoder Officer)
/s/ Gavin S. Herbert Chairman Emeritus January 6, 1999
- --------------------------------- Director
Gavin S. Herbert
/s/ William R. Grant Director January 5, 1999
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William R. Grant
/s/ Lester J. Kaplan, Ph.D Director January 5, 1999
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Lester J. Kaplan, Ph.D.
/s/ Michael R. Gallagher Director Januray 5, 1999
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Michael R. Gallagher
/s/ Karen R. Osar Director January 5, 1999
- ---------------------------------
Karen R. Osar
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EXHIBIT INDEX
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. Stock Price Incentive Plan, (incorporated by
reference to Exhibit 10.21 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1997)
5 Opinion of Counsel (relating to legality of securities being
registered)
23.1 Consent of KPMG 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
Aimee S. Weisner Esq.
Attorney And Assistant Secretary
Direct: (714) 246-5505
Fax: (714) 246-4774
January 11, 1999
Allergan, Inc.
2525 Dupont Drive
Irvine, CA 92612
Re: Form S-8 Registration Statement
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Ladies and Gentlemen:
I am an Attorney 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 18,431 shares of
common stock, $.01 par value (the "Common Stock") of the Company. Such shares
are issuable as needed pursuant to the Allergan, Inc. Stock Price Incentive 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.
January 11, 1999
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
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/ Aimee S. Weisner
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Aimee S. Weisner
Attorney and Assistant Secretary
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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 LLP
Costa Mesa, California
January 8, 1999
