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Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
WATSON PHARMACEUTICALS, INC.
- -------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Nevada 95-3872914
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
311 Bonnie Circle, Corona, CA 91720
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(Address of Principal Executive Offices) (Zip Code)
1991 STOCK OPTION PLAN (as amended)
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(Full title of the plan)
Allen Chao, Ph.D.
Chief Executive Officer
311 Bonnie Circle
Corona, CA 91720
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(Name and address of agent for service)
Telephone number, including area code, of agent for service: (909) 270-1400
--------------
Copy to:
Michel J. Feldman
D'Ancona & Pflaum
30 North LaSalle Street
Chicago, IL 60602
Telephone: (312) 580-2161
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate
to be to be Price per Offering Amount of
Registered Registered Share Price Registration Fee
---------- ------------- --------- -------- ----------------
<S> <C> <C> <C>
Common Stock 1,000,000 $43.88(1) $43,875,000(1) $15,129.31
($0.0033 par value) shares
----------
Total Registration Fee: $15,129.31
==========
</TABLE>
===============================================================================
(1) Estimated solely for the purpose of calculating the registration fee
based upon the average of the high and low sale prices of the
registrant's Common Stock on June 5, 1996, as reported in the NASDAQ
National Market System.
--------------------
EXPLANATORY NOTE
The prospectus which will be part of this Registration Statement is a
combined prospectus under SEC Rule 429 intended to be used for the offering of
(i) the shares of registrant's Common Stock registered hereunder, and (ii) the
shares of registrant's Common Stock remaining to be issued under the 1991 Stock
Option Plan (prior to the amendment to said Plan increasing by 1,000,000 the
number of shares that can be issued under said Plan), which remaining shares
have been previously registered by registrant's registration statements on Form
S-8, File Nos. 33-70878 and 33-94350. The number of such remaining shares is
1,222,504 shares and the amount of the filing fee that was previously paid with
the earlier registration statements is $31,911.73.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The documents listed in (a) through (c) below are incorporated by
reference in this registration statement; and all documents subsequently filed
by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part
thereof from the date of filing of such documents:
(a) The registrant's annual report on Form 10-K for the fiscal year
ended December 31, 1995.
(b) The registrant's quarterly report on Form 10-Q for the quarter
ended March 31, 1996.
(c) The description of the registrant's Common Stock contained in the
registration statement on Form 8-A filed under Section 12 of the
Securities Exchange Act of 1934, File No. 0-20045, together with
any amendment or report filed for the purpose of updating such
description.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock offered hereby will be
passed upon by D'Ancona & Pflaum, Chicago, Illinois. Mr. Michel J. Feldman, a
Director and Secretary of the registrant and a partner of D'Ancona & Pflaum,
beneficially owns 7,500 shares and has the right to acquire 9,000 shares of the
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registrant's Common Stock pursuant to outstanding options. Other partners at
D'Ancona & Pflaum beneficially own an aggregate of approximately 2,100 shares
of the registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 78.751 of the Nevada Revised Statutes authorizes a corporation,
under certain circumstances, to indemnify its directors and officers (including
reimbursement for expenses incurred). The registrant has provided for
indemnification to the fullest extent permitted by the provisions of the Nevada
Revised Statutes in its Articles of Incorporation and Bylaws.
The registrant maintains a directors' and officers' liability insurance
policy that, subject to the terms and conditions of the policy, insures the
registrant's directors and officers against losses up to $3,000,000 in the
aggregate (subject to a $5,000 deductible for each officer or director not to
exceed $10,000 in the aggregate) arising from any wrongful act (as defined by
the policy) in his or her capacity as a director or officer. The policy
reimburses the registrant for amounts which the registrant lawfully indemnifies
or is required or permitted by law to indemnify its directors and officers in
excess of $25,000.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index immediately preceding exhibits.
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
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(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,
represents 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 dollar 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 a 20% 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 (1)(i) and 1(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3 and 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
Securities 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.
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
Securities 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.
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
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 Corona, State of California, on this fifth day of
June, 1996.
WATSON PHARMACEUTICALS, INC.
By: /s/ ALLEN CHAO, PH.D.
-------------------------
Allen Chao, Ph.D.
Chief Executive Officer
Each person whose signature appears below appoints Allen Chao, Ph.D.,
Melvin Sharoky, M.D. and Michel J. Feldman and each of them, as their true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her stead, in any capacities to
sign this Registration Statement on Form S-8 and any and all amendments,
including post-effective amendments to this Registration Statement and to file
the same, with all exhibits thereto and all other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
--------- ----- ----
/s/ ALLEN CHAO, PH.D.
- ---------------------- Chief Executive Officer, and June 5, 1996
Allen Chao, Ph.D. Director (Principal Executive
and Financial Officer)
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Signature Title Date
--------- ----- ----
/s/ MELVIN SHAROKY, M.D. President and Director June 5, 1996
- -----------------------
Melvin Sharoky, M.D.
/s/ CHATO ABAD Vice-President and Corporate
- ----------------------- Controller (Principal June 5, 1996
Chato Abad Accounting Officer)
/s/ MICHAEL FEDIDA Director June 5, 1996
- -----------------------
Michael Fedida
/s/ MICHEL J. FELDMAN Director June 5, 1996
- -----------------------
Michel J. Feldman
/s/ ALBERT F. HUMMEL Director June 5, 1996
- -----------------------
Albert F. Hummel
/s/ ALEC D. KEITH, PH.D. Director June 5, 1996
- -----------------------
Alec D. Keith, Ph.D.
/s/ RONALD R. TAYLOR Director June 5, 1996
- -----------------------
Ronald R. Taylor
8
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
4.1 Registrant's Articles of Incorporation, as amended.
4.2 By-Laws of the registrant, as amended, filed as Exhibit 3.2
to registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1995, and hereby incorporated by reference.
5.1 Opinion of D'Ancona & Pflaum.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of D'Ancona & Pflaum (contained in Exhibit 5.1).
24.1 Power of Attorney (included in Signature section of this
registration statement).
</TABLE>
9
<PAGE> 1
EXHIBIT 4.1
ARTICLES OF INCORPORATION
OF
WATSON PHARMACEUTICALS, INC.
ARTICLE I
The name of the corporation is WATSON PHARMACEUTICALS, INC.
ARTICLE II
The principal office of the corporation shall be located at One East
First Street, Reno, Nevada 89501.
ARTICLE III
The purpose of the corporation is to engage in any lawful act or
activity for which a corporation may be organized under the Nevada General
Corporation Law.
ARTICLE IV
The name and address in this State of the corporation's initial agent
for service of process is The Corporation Trust Company of Nevada, One East
First Street, Reno, Nevada 89501.
ARTICLE V
The Corporation is authorized to issue a total of Five Hundred and Two
Million Five Hundred Thousand (502,500,000) shares of stock, Five Hundred
Million (500,000,000) shares of which shall be classified as common stock,
$.0033 par value per share, and Two Million Five Hundred Thousand (2,500,000)
shares of which shall be classified as preferred stock, no par value per share.
The holders of both classes of stock shall not be entitled to exercise
cumulative voting or preemptive rights.
<PAGE> 2
The voting powers, designations, preferences, limitations,
restrictions, relative rights and distinguishing designation in respect of the
shares of the preferred stock shall be as stated in the resolution or
resolutions providing for the issuance of such preferred stock adopted or to be
adopted by the Board of Directors of the Corporation pursuant to the authority
hereby expressly vested in the Board of Directors of the Corporation by these
Articles of Incorporation.
ARTICLE VI
The members of the governing board shall be called directors of the
Corporation. The number of directors of the Corporation shall be nine (9).
The directors shall be divided into three classes designated as Class I, Class
II and Class III, respectively. Each class shall consist, as nearly as may be
possible, of one-third of the total number of directors constituting the entire
board of directors. At the annual meeting of stockholders of the Corporation
to be held in the year 1995, the Corporation shall designate the slate of
directors to be elected by the stockholders as Class I, Class II and Class III
directors, except that for such 1995 annual meeting only eight (8) directors
shall be elected by the stockholders and the ninth director position shall be
vacant. The initial term of office of the Class I directors shall expire at
the annual meeting of the stockholders held in the year 1996. The initial term
of office of the Class II directors shall expire at the annual meeting of
stockholders held in the year 1997. The initial term of office of the Class
III directors shall expire at the annual meeting of stockholders held in the
year 1998. At each annual meeting of the stockholders after the annual meeting
held in the year 1995, successors to the class of directors whose term expires
at the annual meeting shall be elected for a three-year term. If the number of
directors is changed, any increase or decrease shall be apportioned among the
classes so as to maintain the number of directors in each class as nearly
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as possible, but in no case shall a decrease in the number of directors shorten
the term of any incumbent director. A director shall hold office until the
annual meeting for the year in which his term expires and until his successor
shall be elected and qualified, subject, however, to prior death, resignation,
retirement, disqualification or removal from office. The annual meeting of
stockholders shall be held each year on a date and at a time designated by the
Board of Directors of the Corporation.
Subject to the rights, if any, of holders of any series of Preferred
Stock then outstanding, any vacancy on the Board of Directors that results from
an increase in the number of directors or by reason of the vacancy following
the annual meeting of the stockholders held in the year 1995 may be filled by a
majority of the Board of Directors then in office, provided that a quorum is
present, and any other vacancy occurring in the Board of Directors may be
filled by a majority of the directors then in office, even if less than a
quorum. Any directors elected to fill a vacancy resulting from an increase in
such class shall hold office for a term that shall coincide with the remaining
term of that class. Any director elected to fill a vacancy not resulting from
an increase in the number of directors shall have the same remaining term as
that of his predecessor.
The number of directors shall be established in and shall be subject
to change by amendment of the Bylaws of the corporation. The names and
addressees of the initial board members are as follows:
Hsi Hsiung Chao: 65 Misty Acres Road
Rolling Hills Estates, California 90274
Allen Y. Chao: 1585 North Milwaukee Avenue
Unit 2
Libertyville, Illinois 60048
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Richard Y. Chao: 5 Ninos
Irvine, California 92714
Agnes Y. Kung: 65 Misty Acres Road
Rolling Hills Estates, California 90274
David C. Hsia: 1585 North Milwaukee Avenue
Unit 2
Libertyville, Illinois 60048
Michael J. Feldman: 8300 Sears Tower
233 South Wacker Drive
Chicago, Illinois 60606
ARTICLE VII
Capital stock, after the amount of the subscription price has been
paid in to the corporation is not subject to assessment to pay debts of the
corporation.
ARTICLE VIII
The name and address of the incorporator is as follows:
V. Miller, P.O. Box 2311, Reno, Nevada 89501
ARTICLE IX
The corporation shall have perpetual existence.
ARTICLE X
The shareholders of the corporation shall individually have such
authority as are granted shareholders of corporations by the General
Corporation Law of Nevada, including the authority to cast votes for the
election or removal of Directors of the Corporation.
ARTICLE XI
No director or officer of the Corporation shall be personally liable
to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director or officer, except
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for liability (a) for acts or omissions which involve intentional misconduct,
fraud or a knowing violation of law; or (b) the payment of distributions in
violation of Section 78.300 of the Nevada General Corporation Law.
Any repeal or modification of this Article by the stockholders of the
Corporation shall be prospective only, and shall not adversely affect any right
or protection of a director or officer of the Corporation existing at the time
of such repeal or modification.
ARTICLE XII
1. To the extent not prohibited by law, the Corporation shall
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, except an action by or in the
right of the Corporation, by reason of the fact that he is or was a director,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, including attorneys' fees, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with the
action, suit or proceeding if he acted in good faith and in a manner which 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, has no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon
a plea nolo contendere or its equivalent, does not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to
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the best interests of the Corporation, and that, with respect to any criminal
action or proceeding, he had reasonable cause to believe that his conduct was
unlawful.
2. To the extent not prohibited by law, the Corporation shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Corporation to procure a judgment in its favor by reason of the fact that
he is or was a director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against expenses, including amounts paid in settlement and
attorneys' fees actually and reasonably incurred by him in connection with the
defense or settlement of the action or suit if he acted in good faith and in a
manner which he reasonably believed to be in or not opposed to the best
interests of the Corporation. Indemnification may not be made for any claim
issue or matter as to which such a person has been adjudged by a court of
competent jurisdiction, after exhaustion of all appeals therefrom to be liable
to the Corporation or for amounts paid in settlement to the Corporation, unless
and only to the extent that the court in which the action or suit was brought
or other court of competent jurisdiction determines upon application that in
view of all the circumstances of the case, the person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper, all subject
to the restrictions set forth in Section 78.751 of the Nevada General
Corporation Law.
3. To the extent that a director, officer, employee or agent of a
Corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections 1 and 2 of Article XII,
or in defense of any claim, issue or matter therein, he must be
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indemnified by the Corporation against expenses, including attorneys' fees,
actually and reasonably incurred by him in connection with the defense.
4. Any indemnification under subsections 1 and 2 of Article XII,
unless ordered by a court or advanced pursuant to subsection 5 of Article XII,
may be made by the Corporation only as authorized in the specific case upon
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances by (a) the stockholders of the Corporation; (b)
the Board of Directors by majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding; (c) independent legal counsel
in a written opinion if a majority vote of a quorum consisting of directors who
were not parties to the act, suit or proceeding so orders; and (d) independent
legal counsel in a written opinion if a quorum consisting of directors who were
not parties to the act, suit or proceeding cannot be obtained.
5. The Corporation shall, from time to time, reimburse or advance to
any director or officer or other person entitled to indemnification hereunder
the funds necessary for payment of expenses, including attorneys' fees and
disbursements, incurred in connection with any proceeding, in advance of the
final disposition of such proceeding; provided, however, that, if required by
the Nevada General Corporation Law, such expenses incurred by or on behalf of
any director or officer may be paid in advance of the final disposition of the
action, suit or proceeding only upon receipt of an undertaking by or on behalf
of the director or officer to repay the amount if it is ultimately determined
by a court of competent jurisdiction that he is not entitled to be indemnified
by the Corporation. The provisions of this subsection do not affect any rights
to advancement of expenses to which corporate personnel other than directors or
officers may be entitled under any contract or otherwise by law.
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6. The indemnification and advancement of expenses authorized in or
ordered by a court pursuant to this Article XII (a) does not exclude any other
rights to which a person seeking indemnification or advancement of expenses may
be entitled under these Articles of Incorporation, or any By-Laws, agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court pursuant to
subsection 2 or for the advancement of expenses made pursuant to subsection 5,
may not be made to or on behalf of any director or officer if a final
adjudication establishes that his acts or omissions involved intentional
misconduct, fraud or a knowing violation of the law and was material to the
cause of action (b) continues as to a person who has ceased to be a director or
officer (or other person indemnified hereunder) and shall inure to the benefit
of the heirs, executors and administrators of such person.
Dated: January 2, 1985
------------------------------
V. Miller, Incorporator
8
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EXHIBIT 5.1
June 5, 1996
Watson Pharmaceuticals, Inc.
311 Bonnie Circle
Corona, CA 91720
Gentlemen:
We have acted as counsel for Watson Pharmaceuticals, Inc. (the
"Company") in connection with the filing with the Securities and Exchange
Commission of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the offer and proposed sale of 1,000,000 shares of the
Company's Common Stock $.0033 par value, under the terms of the stock option
plan described in the Registration Statement (the "Stock Option Plan").
In arriving at this opinion, we have examined the Company's Articles
of Incorporation, its By-Laws, the records of the corporate proceedings of the
Company authorizing the issuance and sale of the shares of Common Stock covered
by the Registration Statement, and such other instruments and documents as we
have deemed appropriate.
Based upon the foregoing, we are of the opinion that all necessary
corporate action for the authorization, reservation and issuance of the shares
of Common Stock to be offered and sold by the Company pursuant to the Stock
Option Plan has been taken; and that said shares of Common Stock are duly
authorized, and upon delivery of same to the participants under the Stock
Option Plan against payment therefor upon the terms set forth in the Stock
Option Plan, said shares of Common Stock will be validly issued, fully paid and
non-assessable shares of Common Stock of the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in such Registration
Statement.
Very truly yours,
D'ANCONA & PFLAUM
By: /s/ MICHEL J. FELDMAN
-------------------------------
Michel J. Feldman, Partner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of Watson Pharmaceuticals, Inc. of our report dated
February 5, 1996, except as to Note 11, which is as of March 4, 1996, appearing
on page F-2 of the Annual Report on Form 10-K for the year ended December 31,
1995.
PRICE WATERHOUSE LLP
Costa Mesa, California
June 5, 1996
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in the Registration Statement of
Watson Pharmaceuticals, Inc. on Form S-8 of our report dated February 2, 1996,
relating to the consolidated financial statements of Somerset Pharmaceuticals,
Inc. and subsidiaries as of December 31, 1995 and 1994 and for each of the
three years in the period then ended, included in the Annual Report on Form
10-K of Watson Pharmaceuticals, Inc. for the year ended December 31, 1995.
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
June 5, 1996
