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Filed with the Securities and Exchange Commission on August 21, 1998
Registration No. 333-_________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SciClone Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
California 94-3116852
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
901 Mariners Island Boulevard
San Mateo, CA 94404
(Address of principal executive offices) (Zip code)
SciClone Pharmaceuticals, Inc.
1995 Equity Incentive Plan
(Full title of the plan)
Shawn K. Singh
Senior Vice President
SciClone Pharmaceuticals, Inc.
901 Mariners Island Boulevard
San Mateo, CA 94404
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (650) 358-3456
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------------------------------------
Proposed maximum Proposed maximum
Title of Securities to Amount to be offering price per aggregate offering Amount of
be registered(1) registered share(2) price(2) registration fee
- ------------------------ ---------------------- ---------------------- ------------------------- ------------------------
<S> <C> <C> <C> <C>
Common Stock 2,250,000 $2.1875 $4,921,875 $1,451.95
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- --------
(1) The securities to be registered are Common Stock which include options
and rights to acquire such Common Stock.
(2) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon the average of the high and
low prices of the Common Stock on August 19, 1998 as reported on the
National Association of Securities Dealers Automated Quotation System.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
SciClone Pharmaceuticals, Inc. (the "Company") hereby incorporates by
reference in this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K, filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), containing audited financial statements for the Company's
latest fiscal year ended December 31, 1997.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the registrant document
referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on January 31, 1992, under
the Exchange Act, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities
The class of securities to be offered is registered under Section 12 of
the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation, as amended (the
"Restated Articles"), provide that the liability of the directors for monetary
damages shall be eliminated to the fullest extent permissible under California
law. Pursuant to California law, the Company's directors shall not be liable for
monetary damages for breach of the directors' fiduciary duty of care to the
Company and its shareholders. However, this provision does not eliminate the
duty of care, and in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
California law.
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In addition, each director will continue to be subject to liability for
(i) acts or omissions that involve intentional misconduct or a knowing and
culpable violation of law, (ii) acts or omissions that a director believes to be
contrary to the best interests of the Company or its shareholders or that
involve the absence of good faith on the part of the director, (iii) any
transaction from which a director derived an improper personal benefit, (iv)
acts or omissions that show a reckless disregard for the director's duty to the
Company or its shareholders in circumstances in which the director was aware, or
should have been aware, in the ordinary course of performing a director's
duties, of a risk of serious injury to the Company or its shareholders, (v) acts
or omissions that constitute an unexcused pattern of inattention that amounts to
an abdication of the director's duty to the Company or its shareholders, (vi)
any transaction that constitutes an illegal distribution or dividend under
California law, and (vii) any transaction involving an unlawful conflict of
interest between the director and the Company under California law. The
provision also does not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental laws.
In addition, the Company's Restated Articles provide that the Company
is authorized to provide indemnification of agents (as defined under California
law) for breach of duty to the Company and its shareholders through bylaw
provisions, agreements with the agents, vote of shareholders or disinterested
directors or otherwise, in excess of the indemnification otherwise permitted by
California law, subject to the limits on such excess indemnification set forth
in California law.
The Company's Bylaws provide that the Company will indemnify its
directors and officers to the maximum extent and in the manner permitted by
California law and may indemnify its employees and other agents to the maximum
extent and in the manner permitted by California law. Such indemnification is
intended to provide the full flexibility available under California law and may,
under certain circumstances, include indemnification for negligence, gross
negligence and certain types of recklessness. Under California law and the
Company's Bylaws, the Company will be permitted to indemnify its directors,
officers, employees and other agents, within the limits established by law and
public policy, pursuant to an express contract, bylaw provision, shareholder
vote or otherwise, any or all of which could provide indemnification rights
broader than those expressly available under California law. The Company has
entered into agreements with its directors and certain of its officers,
including all of its executive officers, that require the Company to indemnify
such persons against expenses, judgments, fines, settlements and other amounts
actually and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any such
person may be made a party by reason of the fact that such person is or was a
director or an officer of the Company or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal proceeding, had no reasonable cause to believe his or
her conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
Item 7. Exemption From Registration Claimed
Inapplicable.
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Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
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;
(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)(l)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 that are incorporated by reference in the registration
statement.
(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.
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 (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.
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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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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 San Mateo, State of California, on August 20,
1998.
SciClone Pharmaceuticals, Inc.
By: /s/ Shawn K. Singh
-----------------------------------
Shawn K. Singh
Senior Vice President and Assistant
Secretary
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SIGNATURES AND POWER OF ATTORNEY
The officers and directors of SciClone Pharmaceuticals, Inc. whose
signatures appear below, hereby constitute and appoint Donald R. Sellers and
Shawn K. Singh, and each of them, their true and lawful attorneys and agents,
with full power of substitution, each with power to act alone, to sign and
execute on behalf of the undersigned any amendment or amendments to this
registration statement on Form S-8, and each of the undersigned does hereby
ratify and confirm all that each of said attorney and agent, or their or his
substitutes, shall do or cause to be done by virtue hereof. Pursuant to the
requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
on August 20, 1998.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ Donald R. Sellers President, Chief Executive Officer and Director
- ---------------------------- (Principal Executive Officer)
Donald R. Sellers
/s/ Shawn K. Singh Senior Vice President and Assistant Secretary
- ----------------------------
Shawn K. Singh
/s/ Diane Lee Director, Corporate Finance and Administration
- ---------------------------- (Principal Financial and Accounting Officer)
Diane Lee
/s/ Jere E. Goyan, Ph.D. Chairman of the Board and Director
- ----------------------------
Jere E. Goyan, Ph.D.
/s/ John D. Baxter, M.D. Director
- ----------------------------
John D. Baxter, M.D.
/s/ Edwin C. Cadman, M.D. Director
- ----------------------------
Edwin C. Cadman, M.D.
/s/ Rolf H. Henel Director
- ----------------------------
Rolf H. Henel
</TABLE>
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EXHIBIT INDEX
<TABLE>
<S> <C>
4.1 Restated Articles of Incorporation of the Company is incorporated by
reference to Exhibit 3.1 to the Company's Registration Statement on
Form S-1 (Commission File No. 33-45446) which became effective on March
17, 1992 (the "1992 Registration Statement")
4.2 Certificate of Amendment of Restated Articles of Incorporation is
incorporated by reference to Exhibit 4.1 to the Company's Registration
Statement on Form S-8 filed on August 3, 1993 (Commission File No.
33-66832)
4.3 Certificate of Determination is incorporated by reference as Exhibit A
to Exhibit 1 to the Company's Current Report on Form 8-K filed on
October 14, 1997.
4.4 Certificate of Determination Regarding the terms of the Series C
Preferred Stock is incorporated by reference to Exhibit 3.4 to the
Company's Annual Report on Form 10-K filed on April 2, 1998.
4.5 Bylaws of the Company are incorporated by reference to Exhibit 3.2 to
the 1992 Registration Statement
5 Opinion re legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24 Power of Attorney (included in signature pages to this registration
statement)
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EXHIBIT 5
[GRAY CARY WARE & FREIDENRICH LLP LETTERHEAD]
August 20, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
As legal counsel for SciClone Pharmaceuticals, Inc., a California corporation
(the "Company"), we are rendering this opinion in connection with the
registration under the Securities Act of 1933, as amended, of up to 2,250,000
shares of the Common Stock of the Company which may be issued pursuant to the
SciClone Pharmaceuticals, Inc. 1995 Equity Incentive Plan (the "Plan").
We have examined all instruments, documents and records which we deemed relevant
and necessary for the basis of our opinion hereinafter expressed. In such
examination, we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals and the conformity to
the originals of all documents submitted to us as copies. We are admitted to
practice only in the State of California and we express no opinion concerning
any law other than the law of the State of California and the federal law of the
United States.
Based on such examination, we are of the opinion that the 2,250,000 shares of
Common Stock which may be issued pursuant to the Plan are duly authorized shares
of the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plan, will be
validly issued, fully paid and nonassessable. We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement referred to above and
the use of our name wherever it appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich LLP
GRAY CARY WARE & FREIDENRICH LLP
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration statement (Form
S-8) pertaining to the 1995 Equity Incentive Plan of SciClone Pharmaceuticals,
Inc., of our report dated January 16, 1998, except Note 10, as to which date is
April 2, 1998, with respect to the consolidated financial statements and
schedule of SciClone Pharmaceuticals, Inc., included in its Annual Report on
Form 10-K/A and on Form 10-K for the year ended December 31, 1997 filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
August 21, 1998
