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As filed with the Securities and Exchange Commission on January 6, 2000
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
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ALLERGAN, INC.
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(Exact name of Registrant as specified in its charter)
DELAWARE 95-1622442
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 246-4500
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(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
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Allergan, Inc.
Deferred Directors' Fee Program
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(Full title of program)
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FRANCIS R. TUNNEY, JR.
CORPORATE VICE PRESIDENT--ADMINISTRATION, GENERAL COUNSEL AND SECRETARY
ALLERGAN, INC.
2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 246-4500
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE PRICE FEE
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<S> <C> <C> <C> <C>
DEFERRED COMPENSATION OBLIGATIONS (1) $26,000,000 100% $26,000,000 (3) $0 (4)
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COMMON STOCK, PAR VALUE $.01 PER SHARE 500,000 SHARES $49.375 (2) $24,687,500 (3) $6,517.50
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</TABLE>
(1) This Registration Statement is filed for up to $26,000,000 in Deferred
Compensation Obligations of the Registrant pursuant to its Deferred
Directors' Fee Program, which by its terms includes unsecured obligations of
the Registrant to pay, in the future, deferred compensation in accordance
with the terms of the Allergan, Inc. Deferred Directors' Fee Program. In
addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the Deferred Directors' Fee Program described
herein.
(2) This figure is calculated (pursuant to Rule 457(h) of the Securities Act of
1933, as amended) on the basis of the average of the high and low prices of
Allergan, Inc. Common Stock on the New York Stock Exchange on January 4,
2000.
(3) Estimated solely for purposes of calculating registration fees.
(4) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended, no
separate fee is required with respect to the registration of the Obligations
under the Allergan, Inc. Deferred Directors' Fee Program.
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INTRODUCTION
This Registration Statement on Form S-8 is filed by Allergan, Inc., a
Delaware corporation (the "Company"), and relates to (a) $26,000,000 of
unsecured obligations of the Company to pay deferred compensation in the future
(the "Obligations") in accordance with the terms and provisions of the Company's
Deferred Directors' Fee Program (the "Program"), and (b) 500,000 shares of
Company common stock, par value $.01 per share ("Common Stock"), which may be
issued under the Program.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PROGRAM INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PROGRAM ANNUAL INFORMATION.*
* Information required by Part 1 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 (the "COMMISSION"), are
incorporated herein by reference and made a part hereof:
(i) The Company's Annual Report on Form 10-K for the year ended
December 31, 1998;
(ii) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 26, June 25, and September 24, 1999; and
(iii) 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 reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") subsequent to the date of this Registration Statement and prior
to the filing of a post-effective amendment hereto which indicates that all
securities offered hereunder have been sold or which 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 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Directors of the Company who are not employees of the Company and who
receive annual retainers and meeting fees from the Company as compensation for
serving as members of the Board of Directors (the "Board") of the Company are
eligible to participate in the Program ("Eligible Directors"). The purpose of
the Program is to provide Eligible Directors with a means to defer income
received from the Company until termination of status as a director.
To participate in the Program, prior to the beginning of each calendar
year, an Eligible Director may elect to defer the receipt of any or all of (i)
the annual retainer fee otherwise payable to him or her in cash for that
calendar year, and/or (ii) the meeting attendance fees otherwise payable to him
or her in cash for that calendar year (the "Deferred Amount") by completing and
submitting to the Company a "Declaration Form." Deferred Amounts shall be
treated as having been invested in shares of Company Common Stock and shall be
general unsecured obligations of the Company.
Obligations will consist of an amount equal to each Eligible Director's
"Stock Equivalent Account," which includes (i) an appropriate number of shares
of Company Common Stock as determined by dividing the Deferred Amount by the
closing price of a share of Company Common Stock on the New York Stock Exchange
on the day on which payment in cash otherwise (but for the election to defer)
would have been paid, plus (ii) any dividends or distributions on the shares
received in accordance with (i) above, with the dividend or distribution share
price calculated in the same manner as (i), less (iii) any distributions made to
an Eligible Director or his or her beneficiary pursuant to the Program. Each
Eligible Director who participates in the Program will receive quarterly
statements on the value of his or her Stock Equivalent Account.
Payments shall begin upon severance from an Eligible Director's
directorship with the Company, whether by retirement, death, disability or other
termination of his or her directorship. All payments will be made in shares of
Company Common Stock, with the total number of shares of Common Stock issued to
each Eligible Director being equal to the number of shares of Common Stock in
such Eligible Director's Stock Equivalent Account as valued using the per share
price of Company Common Stock on the last day of the quarter immediately
preceding the issuance. In the event of installment payments, the Eligible
Director's entitlement will be valued at the per share closing price of Company
Common Stock on the last day preceding the date of that installment payment. The
Common Stock to be issued under the Program will be made available from either
authorized but unissued shares of Common Stock or from previously issued shares
of Common Stock reacquired by the Company, including shares purchased in the
open market.
Payment in lump sum or in annual installments will be at the sole
discretion of the Chief Executive Officer of the Company. If installment
payments are issued, the number of installments will be the lesser of ten (10)
or twice the number of years the Eligible Director participated in the Program.
In the event of the Eligible Director's death, payments will be made in a lump
sum to the designated beneficiary.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
(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 or 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 acted in good faith and in a manner he 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 conduct was
unlawful.
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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
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 to
those set forth above, except that no indemnification may be made in respect to
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, he shall be indemnified against expenses
actually and reasonably incurred by him 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 the
law, paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty. The Company's Certificate of Incorporation 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 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 expense 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 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 Exchange Act 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.
4
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The Company has a policy of directors' liability insurance which insures
the directors and officers against the cost of defense, settlement or payment of
a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
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4 Allergan, Inc. Deferred Directors' Fee Program, amended and
restated as of November 15, 1999.
5 Opinion of Counsel (relating to legality of securities being
registered).
23.1 Consent of KPMG LLP, independent auditors.
23.2 Consent of Counsel (contained in Exhibit 5 hereto).
24. Power of Attorney (contained on signature page hereto).
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 of 1933;
(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 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 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 Section 15(d) of the Exchange Act of 1934 that are incorporated by
reference in the 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
Exchange Act of 1934 that is incorporated by reference in the registration
statement 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.
(c) 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 Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for a 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 3, 2000.
ALLERGAN, INC.
By: /s/ Francis R. Tunney, Jr.
----------------------------------------
Francis R. Tunney, Jr.
Corporate Vice President-Administration,
General Counsel and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Francis R. Tunney, Jr. his true and lawful attorneys-in-fact and agents, each
acting alone, with full powers of substitution and resubstitution, for him and
in his 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 attorneys-in-fact and agents, each acting alone, with full powers and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as full to all intents and purposes as he
might or could do in person, hereby ratifying and confirming that all said
attorneys-in-fact and agents, each acting alone, or his 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 indicated on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David E. I. Pyott President and Chief Executive Officer January 3, 2000
- ------------------------------------------ (Principal Executive Officer)
David E. I. Pyott
/s/ Herbert W. Boyer Chairman of the Board January 4, 2000
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Herbert W. Boyer, Ph.D.
/s/ Eric Brandt Corporate Vice President and Chief Financial January 3, 2000
- ------------------------------------------ Officer (Principal Financial Officer)
Eric K. Brandt
/s/ Dwight J. Yoder Senior Vice President and Controller January 4, 2000
- ------------------------------------------ (Principal Accounting Officer)
Dwight J. Yoder
/s/ Gavin Herbert Chairman Emeritus, Director January 3, 2000
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Gavin S. Herbert
/s/ William R. Grant Director January 4, 2000
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William R. Grant
/s/ Lester J. Kaplan Director January 3, 2000
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Lester J. Kaplan, Ph.D.
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Michael Gallagher Director January 4, 2000
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Michael R. Gallagher
/s/ Karen R. Osar Director January 4, 2000
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Karen R. Osar
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
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4 Allergan, Inc. Deferred Directors' Fee Program, amended and
restated as of November 15, 1999.
5 Opinion of Counsel (relating to legality of securities being
registered).
23.1 Consent of KPMG LLP, independent auditors.
23.2 Consent of Counsel (contained in Exhibit 5 hereto).
24. Power of Attorney (contained on signature page hereto).
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EXHIBIT 4
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DEFERRED DIRECTORS' FEE PROGRAM aALLERGAN
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ALLERGAN BOARD OF DIRECTORS
NOVEMBER 15, 1999
PURPOSE
To provide nonemployee directors of Allergan, Inc., with a means to defer income
until termination of status as a director.
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ELIGIBILITY
Directors of Allergan, Inc., entitled to directors' fees.
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PROCEDURE
The amount or percentage of the annual directors' retainer and meeting fees to
be deferred must be specified by the director in writing to Allergan, Inc. no
later than December 31 of the prior calendar year. The election is irrevocable
for that calendar year. In subsequent years, no deferral will take place unless
a new election is made by the director. The amount deferred is an offset against
and cannot exceed the amount of the directors' fees for that calendar year. If,
at the end of any calendar year, the average total cash compensation amount per
nonemployee director has increased by more than 30% over the prior calendar year
average, then the Allergan Board of Directors, or a committee comprised solely
of nonemployee directors, shall be required to review and reapprove the program.
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ADJUSTMENT FACTOR
Deferred amounts are treated as having been invested in Allergan Common Stock
(Stock Value Factor).
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STOCK VALUE FACTOR
Amounts deferred in a calendar year will be treated as having been invested in
shares of Allergan Common Stock.
1. The share price will be calculated to the nearest one-thousandth of a share
at the closing price of Allergan Common Stock on the New York Stock
Exchange on the day in which payment in cash otherwise (but for the
election to defer) would have been paid.
2. Allergan Common Stock dividends or other distributions will be credited to
each participant's account on the payment date for stockholders of record.
These dividends/distributions will be treated as having been invested in
Allergan Common Stock. The share price will be calculated in the same
manner as (1.) above.
3. The total number of shadow shares in a participant's account will be valued
using the per share price of Allergan Common Stock at the end of each
quarter.
4. In the event of installment payments, the participant's entitlement will be
valued at the per share closing price of Allergan Common Stock on the last
day preceding the date of that installment payment.
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PAYMENTS
Effective for all deferrals allocated to participant accounts after December 31,
1999, all payments will be made in shares of Allergan Common Stock, with the
total number of shares of Allergan Common Stock issued to each participant being
equal to the number of shadow shares in the participant's account. In addition,
each participant may elect to receive payments for amounts deferred prior to
2000 in shares of Allergan Common Stock (rather than in cash). No fractional
shares shall be issued under the program, and all share amounts shall be rounded
down to the nearest whole share.
Payment in lump sum or in annual installments will be at the sole discretion of
the Chief Executive Officer of Allergan, Inc. If installment payment is used,
the number of installments will be the lesser of ten or twice the number of
years the director participated in the program.
1. If the participant's service as a director terminates between January 1 and
June 30, the lump sum payment or the first installment will be paid no
later than December 31 of the year of termination.
2. If the participant's service as a director terminates between July 1 and
December 31, the lump sum payment or the first installment, may be deferred
at the discretion of Allergan, Inc., until the January immediately
following termination.
3. If payment is made in installments, the second installment will be paid
during January of the year following the year in which the first
installment was paid and all remaining installments will be paid annually
in the month of January.
4. In the event of the participant's death, payments will be made in a lump
sum to the designated beneficiary.
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QUARTERLY STATEMENTS
Each participant will receive a quarterly statement on the value of his or her
account.
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SHARES OF COMMON STOCK SUBJECT TO THE PROGRAM
The aggregate number of shares that may be issued under this program is 500,000
(on a post-1999 stock split basis). The Common Stock to be issued under this
program will be made available from either authorized but unissued shares of
Common Stock or from previously issued shares of Common Stock reacquired by the
Company, including shares purchased in the open market.
If the outstanding shares of Allergan Common Stock are increased, decreased or
exchanged for a different number or kind of shares or other securities, or if
additional shares or new or different shares or other securities are distributed
in respect of such shares of Common Stock (or any stock or securities received
with respect to such Common Stock), through merger, consolidation, sale or
exchange of all or substantially all of the properties of the Company,
reorganization, recapitalization, reclassification, stock
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dividend, stock split, reverse stock split, spin-off or other distribution in
respect of such shares of Common Stock (or any stock or securities received with
respect to such Common Stock), an appropriate and proportionate adjustment shall
be made in (i) the maximum number of securities issuable under the program and
(ii) the number and kind of shadow shares in each account. The Board's
determination of the adjustments required shall be final, binding and
conclusive. No fractional interests shall be issued under the program on account
of any such adjustment.
No shares of Allergan Common Stock will be issued under this program unless and
until all applicable requirements imposed by federal and state securities and
other laws, rules and regulations and by any regulatory agencies having
jurisdiction and by any stock exchange upon which the Allergan Common Stock may
be listed have been fully met. As a condition precedent to the issuance of
shares of Allergan Common Stock, the Company may require the participant to take
reasonable action to comply with such requirements.
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EXHIBIT 5
Aimee S. Weisner, Esq.
Corporate Counsel and Assistant Secretary
Allergan, Inc.
2525 Dupont Drive
Irvine, CA 92612
(714) 246-4500
January 6, 2000
Allergan, Inc.
2525 Dupont Drive
Irvine, CA 92612
Re: Registration Statement on Form S-8 for $26,000,000
in Deferred Compensation Obligations and 500,000 Shares of
Common Stock
Ladies and Gentlemen:
I am Corporate Counsel and Assistant Secretary of Allergan, Inc., a
Delaware corporation (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 by the Company with the Securities and Exchange
Commission in connection with the registration under the Securities Act of 1933,
as amended (the "Securities Act") of (a) $26,000,000 of unsecured obligations
(the "Obligations") of the Company to pay deferred compensation in the future in
accordance with the terms and provisions of the Allergan, Inc. Deferred
Directors' Fee Program (the "Program"), and (b) 500,000 shares of common stock
of the Company, par value $.01 per share ("Common Stock"), which may be issued
under the Program.
For purposes of rendering this opinion, I have made such legal and
factual examinations as I have deemed necessary under the circumstances and, as
part of such examination, I have examined, among other things, originals and
copies, certified or otherwise identified to my satisfaction, of such documents,
corporate records and other instruments as I have deemed necessary or
appropriate. For the purposes of such 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 in reliance upon the foregoing examination and
assumptions, I am of the opinion that, assuming the Registration Statement shall
have become effective pursuant to the provisions of the Securities Act, (a) the
Common Stock, when issued in accordance with the provisions of the Program, will
be validly issued, fully paid and nonassessable, and (b) the Obligations, if
issued in accordance with the provisions of the Program, are or, when issued,
will be binding obligations of the Company, subject, as to enforcement, to (i)
bankruptcy, reorganization, insolvency, moratorium and other similar laws and
court decisions of general
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Allergan, Inc.
January 6, 2000
Page Two
application, including without limitation, statutory or other laws regarding
fraudulent or preferential transfers, relating to, limiting or affecting the
enforcement of creditors' rights generally, and (ii) the effect of general
principles of equity upon the specific enforceability of any of the remedies,
covenants or other provisions of the Program and upon the availability of
injunctive relief or other equitable remedies and the application of principles
or equity (regardless of whether enforcement is considered in proceedings at law
or in equity) as such principles relate to, limit or affect the enforcement of
creditors' rights generally.
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. In giving such consent, I do not thereby admit that I am
in the category of persons whose consent is required under Section 7 of the
Securities Act.
Very truly yours,
/s/ Aimee S. Weisner
-----------------------------------------
Aimee S. Weisner
Corporate Counsel and Assistant Secretary
of Allergan, Inc.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
Allergan, Inc.:
We consent to the use of our report dated January 27, 1999, 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, 1998 and 1997, and the related consolidated statements of
operations, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1998, and the related schedule.
/s/ KPMG LLP
Costa Mesa, California
January 6, 2000
