EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the
"Amendment") to the Registration Statements on Form S-8 (File
No. 33-76100, 33-92884 and 333-14317) (collectively the
"Registration Statements")is being filed pursuant to Rule 414
under the Securities Act of 1933, as amended (the "Securities
Act"), by Penederm Incorporated, a Delaware corporation
("Penederm Delaware" or the "Registrant"), which is the
successor to Penederm Incorporated, a California corporation
("Penederm California"), following a statutory merger effective
on July 30, 1997 (the "Merger") effected for the
purpose of changing Penederm California's state of
incorporation to Delaware. Prior to the Merger,
Penederm Delaware had no assets or liabilities other
than nominal assets or liabilities. In connection
with the Merger, Penederm Delaware succeeded by
operation of law to all of the assets and liabilities
of Penederm California. The Merger was approved by
the shareholders of Penederm California at a meeting
for which proxies were solicited pursuant to Section
14(a) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). In connection with the
Merger, Penederm Delaware, by virtue of this
Amendment, expressly adopts the Registration
Statements as its own registration statements for all
purposes of the Securities Act and the Exchange Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The contents of the Registration Statements
are incorporated herein by reference. In addition,
the following documents filed or to be filed with the
Securities and Exchange Commission are incorporated
by reference in this Amendment:
(a) Penederm California's Annual Report on
Form 10-K for the fiscal year ended December 31,
1996, filed pursuant to Section 13 of the Exchange
Act;
(b) Penederm California's Quarterly Report on
Form 10-Q for the quarter ended March 31, 1997, filed
pursuant to Section 13 of the Exchange Act; and
(c) The description of the Registrant's Common
Stock contained in the Registration Statement on Form 8-A
filed pursuant to Section 12(g) of the Exchange Act and
the descriptioin of the Registrant's rights to purchase
Common Stock filed pursuant to Section 12(g) of the
Exchange Act, each as amended by the Registrant's report
on Form 8-K filed on August 1, 1997.
All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all
securities registered hereby have been sold or which
deregisters all securities then remaining unsold,
shall be deemed to be incorporated by reference in
this Amendment and to be part hereof from the date of
filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Pursuant to the Delaware General Corporation
Law, the Registrant has included in its certificate
of incorporation provisions regarding the
indemnification of officers and directors of the
Registrant. Article TENTH of the Registrant's
Certificate of Incorporation provides as follows:
"TENTH.
A. RIGHT TO INDEMNIFICATION
Each person who was or is made a
party or is threatened to be made a party to or is
involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (a
"proceeding"), by reason of the fact that he or she
is or was a director, officer or employee of the
corporation or is or was serving at the request of
the corporation as a director or officer, employee or
agent of another corporation, or of a partnership,
joint venture, trust or other enterprise, including
service with respect to employee benefit plans,
whether the basis of such proceeding is alleged
action in an official capacity as a director,
officer, employee or agent or in any other capacity
while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by the
corporation to the fullest extent authorized or
permitted by the Delaware General Corporation Law, as
the same exists or may hereafter be amended (but, in
the case of any such amendment, only to the extent
that such amendment permits the corporation to
provide broader indemnification rights than that law
permitted the corporation to provide before the
amendment) against all expenses, liabilities and
losses (including, without limitation, attorneys'
fees, judgments, fines, ERISA excise taxes and
penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by such
person in connection therewith. Such indemnification
shall continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure
to the benefit of his or her heirs, executors and
administrators. However, the corporation shall
indemnify any such person seeking indemnity in
connection with an action, suit or proceeding (or
part thereof) initiated by that person only if that
action, suit or proceeding (or part thereof) was
authorized by the board of directors of the
corporation. The rights set forth in this Article
TENTH shall be contract rights and shall include the
right to be paid expenses incurred in defending any
such proceeding in advance of its final disposition.
However, the payment of such expenses incurred by a
director or officer of the corporation in his or her
capacity as a director or officer (and not in any
other capacity in which service was or is rendered by
such person while a director or officer, including,
without limitation, service to an employee benefit
plan) in advance of the final disposition of such
proceeding shall be made only upon delivery to the
corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so
advanced if it should be determined ultimately that
such director or officer is not entitled to be so
indemnified.
B. RIGHT OF CLAIMANT TO BRING SUIT
If a claim under Paragraph A of this
Article TENTH is not paid in full by the corporation
within 90 days after a written claim has been
received by the corporation, the claimant may at any
time thereafter bring suit against the corporation to
recover the unpaid amount of the claim. If
successful in whole or in part, the claimant shall be
entitled to be paid the expense of prosecuting that
claim. It shall be a defense to any such action
(other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in
advance of its final disposition where the required
undertaking, if any, has been tendered to this
corporation) that the claimant has not met the
standards of conduct which make it permissible under
the Delaware General Corporation Law for the
corporation to indemnify the claimant for the amount
claimed. However, the burden of proving such defense
shall be on the corporation. Neither the failure of the
corporation (including its board of directors, independent
legal counsel or its stockholders) to have made a
determination before the commencement of such action
that indemnification of the claimant is proper in the
circumstances because he or she has met the
applicable standard of conduct set forth in the
Delaware General Corporation Law, nor an actual
determination by the corporation (including its board
of directors, independent legal counsel or its
stockholders) that the claimant has not met such
applicable standard of conduct, shall be a defense to
the action or create a presumption that the claimant
has not met the applicable standard of conduct.
C. NON-EXCLUSIVITY OF RIGHTS
The rights conferred on any person by
Paragraphs A and B of this Article TENTH shall not be
exclusive of any other rights which such person may
have or hereafter may acquire under any statute,
provision of the Certificate of Incorporation, by-
law, agreement, vote of stockholders or of
disinterested directors, or otherwise.
D. EXPENSES AS A WITNESS
To the extent that any director,
officer or employee of the corporation is by reason
of such position, or a position with another entity
at the request of the corporation, a witness in any
action, suit or proceeding, he or she shall be
indemnified against all costs and expenses actually
and reasonably incurred by him or her on his or her
behalf in connection therewith.
E. INDEMNITY AGREEMENTS
The corporation may enter into
agreements with any director, officer, employee or
agent of the corporation or any person who serves at
the request of the corporation as a director,
officer, employee, or agent of another corporation or
other enterprise, providing for indemnification to
the fullest extent permissible under the Delaware
General Corporation Law.
F. EFFECT OF REPEAL OR MODIFICATION
Any repeal or modification of this
Article TENTH shall not adversely affect any right of
indemnification of a director, officer or employee of
the corporation existing at the time of such repeal
or modification with respect to any action or
omission occurring before the repeal or modification.
G. SEPARABILITY
Each and every paragraph, sentence,
term and provision of this Article TENTH is separate
and distinct. If any paragraph, sentence, term or
provision is held to be invalid or unenforceable for
any reason, such invalidity or unenforceability shall
not affect the validity or enforceability of any
other such paragraph, sentence, term or provision.
To the extent required in order to make any such
paragraph, sentence, term or provision of this
Article TENTH valid or enforceable, the corporation
shall, and the indemnitee or potential indemnitee
may, request a court of competent jurisdiction to
modify the paragraph, sentence, term or provision in
order to preserve its validity and provide the
broadest possible indemnification permitted by
applicable law.
H. INSURANCE
The corporation may maintain
insurance, at its expense, to protect itself and any
director, officer, employee or agent of the
corporation or another corporation, partnership,
joint venture, trust or other enterprise against any
expense, liability or loss of the type referred to in
this Article TENTH, whether or not the corporation
would have the power to indemnify such person against
such expense, liability or loss under applicable
law."
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
23.1 Consent of Ernst & Young LLP
23.2 Consent of Coopers & Lybrand L.L.P.
99.1(1) Equity Incentive Plan
99.2(1) Employee Stock Purchase Plan
99.3(2) Employee Stock Option Plan, as amended
99.4(2) Consultant Stock Option Plan, as amended
99.5(2) 1994 Nonemployee Directors Stock Option Plan
_______________________
(1) Incorporated by reference to the exhibits
to Penederm California's Registration Statement on
Form S-8 (File No. 333-14317) filed on
October 17, 1996.
(2) Incorporated by reference to the exhibits
to Penederm California's Registration Statement on
Form S-8 (File No. 33-76100) filed on March 4, 1994.
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 posteffective amendment by those
paragraphs is contained in periodic reports filed
by the Registrant pursuant to Section 13 or 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 posteffective 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 Exchange Act) 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 fo liabilities
arising under the Securities Act may be permitted to
directors, officers and controlling persons of the
Registrant pursuant to the provisions described in
Item 6, 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 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 whether such
indemnification by it is against public policy as
expressed in the Securities Act and will be governed
by the final adjudication of such issue.
SIGNATURES
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 Foster City, State of
California, on this 1st day of August, 1997.
PENEDERM INCORPORATED
By: /s/ Lloyd H. Malchow
_____________________
Lloyd H. Malchow
Director, President and
Chief Executive Officer
Pursuant to the requirements of the Securities
Act of 1933, this registration statement on Form S-8
has been signed below by the following persons in the
capacities and on the dates indicated.
/s/ Lloyd H. Malchow
______________________________ Director, President and August 1, 1997
Lloyd H. Malchow Chief Executive Officer
(Principal Executive
Officer)
/s/ Robert F. Allnutt
______________________________ Director August 1, 1997
Robert F. Allnutt
/s/ William I. Bergman
______________________________ Director August 1, 1997
William I. Bergman
/s/ David E. Collins
______________________________ Chairman of the Board August 1,1997
David E. Collins
/s/ Mark. J. Gabrielson
______________________________ Director August 1, 1997
Mark J. Gabrielson
/s/ Harvey S. Sadow, Ph.D.
______________________________ Director August 1, 1997
Harvey S. Sadow, Ph.D.
/s/ Gerald D. Weinstein, M.D.
______________________________ Director August 1, 1997
Gerald D. Weinstein, M.D.
Index to Exhibits
Sequentially
Exhibit No. Description of Exhibit Numbered Page
23.1 Consent of Ernst & Young LLP
23.2 Consent of Coopers & Lybrand L.L.P.
99.1(1) Equity Incentive Plan
99.2(1) Employee Stock Purchase Plan
99.3(2) Employee Stock Option Plan, as amended
99.4(2) Consultant Stock Option Plan, as amended
99.5(2) 1994 Nonemployee Directors Stock Option Plan
___________________
(1) Incorporated by reference to the exhibits
to Penederm California's Registration Statement on Form
S-8 (File No. 333-14317) filed on October 17, 1996.
(2) Incorporated by reference to the exhibits to
Penederm California's Registration Statement on
Form S-8 (File No. 33-76100) filed on March 4,
1994.
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Post
Effective Amendment No. 1 to the Registration Statements (Form S-
8 Nos. 33-76100, 33-92884, 333-14317) pertaining to the Employee
Stock Option Plan, Consultant Stock Option Plan, 1994 Nonemployee
Directors Stock Option Plan, Equity Incentive Plan and Employee
Stock Purchase Plan of Penederm Incorporated of our report dated
January 27, 1997 (except for the second paragraph of Note 12 as
to which the date is March 4, 1997), with respect to the
consolidated financial statements included in its Annual Report
(Form 10-K) for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Palo Alto, California
July 31, 1997
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration
Statement of Penederm Incorporated's Post Effective Amendment No. 1
on Form S-8 (File Nos. 33-76100, 33-92884 and 333-14317) of our report
dated January 20, 1995, on our audit of the statement of operations,
shareholders' equity and cash flows of Penederm Incorporated for
the year ended December 31, 1994, which report is included in the
Registrant's 1996 Annual Report on Form 10-K.
/s/ Coopers & Lybrand L.L.P.
San Jose, California
July 30, 1997
