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As filed with the Securities and Exchange Commission on August 11, 2000
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 95-1622442
(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
(Address, including Zip Code, and Telephone Number,
including Area Code, of Registrant's Principal Executive Offices)
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ALLERGAN PHARMACEUTICALS
(IRELAND) LTD., INC.
SAVINGS RELATED SHARE OPTION SCHEME (2000)
(Full Title of Plans)
-------------------------
FRANCIS R. TUNNEY, JR.
CORPORATE VICE PRESIDENT - ADMINISTRATION, GENERAL COUNSEL AND SECRETARY
ALLERGAN, INC.
2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 246-4500
(Name, Address, including Zip Code, 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(1) SHARE(2) PRICE(2) FEE
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<S> <C> <C> <C> <C>
Common Stock, 300,000 shares $72.6563 $21,796,890.00 $5,755.00
par value $.01 per share
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</TABLE>
(1) Each share of Common Stock includes a right to purchase one one-hundredth of
a share of Allergan's Series A Junior Participating Preferred Stock, par
value $.01 per share, pursuant to the Rights Agreement dated January 25,
2000 between Allergan, Inc. and First Chicago Trust Company of New York, as
Rights Agent. Pursuant to Rule 416(a) under the Securities Act of 1933, this
Registration Statement also covers shares issued pursuant to antidilution
provisions set forth in the Allergan Pharmaceuticals (Ireland) Ltd., Inc.
Savings Related Share Option Scheme (2000).
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933 and
based upon the average of the high and low sale prices of the Common Stock
of Allergan as reported on the New York Stock Exchange on August 8, 2000.
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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 300,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), that the
Company may issue under the Allergan Pharmaceuticals (Ireland) Ltd., Inc.
Savings Related Share Option Scheme (2000) (the "Scheme").
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. SCHEME 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 (the "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, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2000;
(c) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 2000;
(d) 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; and
(e) The description of the Rights to Purchase Series A Junior
Participating Preferred Stock (the "Rights") and of the Series A
Junior Participating Preferred Stock, par value $.01 per share,
contained in the Company's Registration Statement on Form 8-A (File
No. 001-10269), 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 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 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.
Not applicable.
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.
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
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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.
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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3.1 Restated Certificate of Incorporation of the Company as filed
with the State of Delaware on May 22, 1989 (incorporated by
reference to Exhibit 3.1 to Registration Statement on Form S-1
No. 33-28855, filed May 24, 1989).
3.2 Certificate of Amendment of Certificate of Incorporation of the
Company as filed with the State of Delaware on May 4, 2000
(incorporated by reference to Exhibit 3.2 to the Company's
Report on Form 10-Q for the Quarter ended June 30, 2000.)
3.3 Bylaws of the Company (incorporated by reference to Exhibit 3 to
the Company's Report on Form 10-Q for the Quarter ended June 30,
1995).
3.4 First Amendment to Allergan, Inc. Bylaws (incorporated by
reference to Exhibit 3.1 to the Company's Report on Form 10-Q
for the Quarter ended September 24, 1999).
4.1 Certificate of Designations of Series A Junior Participating
Preferred Stock as filed with the State of Delaware on February
1, 2000 (incorporated by reference to Exhibit 4.1 to the
Company's Report on Form 10-K for the Fiscal Year ended December
31, 1999).
4.2 Rights Agreement, dated January 25, 2000, between Allergan, Inc.
and First Chicago Trust Company of New York (incorporated by
reference to Exhibit 4 to the Company's Current Report on Form
8-K filed on January 28, 2000).
4.3 Allergan Pharmaceuticals (Ireland) Ltd., Inc. Savings Related
Share Option Scheme (2000).
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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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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this 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.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a 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 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 August 11 , 2000.
ALLERGAN, INC.
By: /s/ FRANCIS R. TUNNEY, JR.
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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 attorney-in-fact and agent 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 attorney-in-fact and
agent with 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 might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent 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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ DAVID E. I. PYOTT President and Chief Executive Officer, August 11, 2000
------------------------------------------ Director
David E. I. Pyott (Principal Executive Officer)
/s/ ERIC K. BRANDT Corporate Vice President and Chief Financial August 11, 2000
------------------------------------------ Officer (Principal Financial Officer)
Eric K. Brandt
/s/ JAMES M. HINDMAN Senior Vice President and Controller August 11, 2000
------------------------------------------ (Principal Accounting Officer)
James M. Hindman
/s/ HERBERT W. BOYER Chairman of the Board August 7, 2000
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Herbert W. Boyer
/s/ MICHAEL R. GALLAGHER Director August 11, 2000
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Michael R. Gallagher
/s/ WILLIAM R. GRANT Director August 11, 2000
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William R. Grant
/s/ GAVIN S. HERBERT Chairman Emeritus, Director August 11, 2000
------------------------------------------
Gavin S. Herbert
/s/ LESTER J. KAPLAN Director August 11, 2000
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Lester J. Kaplan
/s/ KAREN R. OSAR Director August 11, 2000
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Karen R. Osar
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S-1
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EXHIBIT INDEX
Exhibit No. Description
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3.1 Restated Certificate of Incorporation of the Company as filed
with the State of Delaware on May 22, 1989 (incorporated by
reference to Exhibit 3.1 to Registration Statement on Form S-1
No. 33-28855, filed May 24, 1989).
3.2 Certificate of Amendment of Certificate of Incorporation of the
Company as filed with the State of Delaware on May 4, 2000
(incorporated by reference to Exhibit 3.2 to the Company's
Report on Form 10-Q for the Quarter ended June 30, 2000.)
3.3 Bylaws of the Company (incorporated by reference to Exhibit 3 to
the Company's Report on Form 10-Q for the Quarter ended June 30,
1995).
3.4 First Amendment to Allergan, Inc. Bylaws (incorporated by
reference to Exhibit 3.1 to the Company's Report on Form 10-Q
for the Quarter ended September 24, 1999).
4.1 Certificate of Designations of Series A Junior Participating
Preferred Stock as filed with the State of Delaware on February
1, 2000 (incorporated by reference to Exhibit 4.1 to the
Company's Report on Form 10-K for the Fiscal Year ended December
31, 1999).
4.2 Rights Agreement, dated January 25, 2000, between Allergan, Inc.
and First Chicago Trust Company of New York (incorporated by
reference to Exhibit 4 to the Company's Current Report on Form
8-K filed on January 28, 2000).
4.3 Allergan Pharmaceuticals (Ireland) Ltd., Inc. Savings Related
Share Option Scheme (2000).
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).
