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As filed with the Securities and Exchange Commission on January 21, 1999
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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WATSON PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
Nevada 95-3872914
- --------------------------------------------------------------------------------
(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)
(1) TheraTech, Inc. 1992 Amended and Restated Employees' Stock Option Plan
("Plan")
(2) Options issued outside of any plan sponsored by TheraTech, Inc.
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(Full title of the plans)
Robert C. Funsten
Vice President, General Counsel and Secretary
Watson Pharmaceuticals, Inc.
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
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Copy to:
Michel J. Feldman
D'Ancona & Pflaum LLC
111 E. Wacker Drive
Suite 2800
Chicago, Illinois 60601-4205
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Amount maximum maximum Amount of
securities to to be offering price aggregate registration
be registered registered per share offering price fee
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<S> <C> <C> <C> <C>
common stock
($0.0033 par value) 584,774(1) $ 33.98(3) $ 19,873,916 $5,525.00(4)
common stock
($0.0033 par value) 36,883(2) $ 6.85(3) $ 252,649 $ 71.00(4)
Total Registration Fee: $5,596.00
</TABLE>
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(1) The number of shares set forth to be registered corresponds to the
aggregate number of shares of TheraTech, Inc. ("TheraTech") common stock which
could be purchased upon exercise of all options issued under the Plan. These
options when granted were to be exercisable for shares of TheraTech. Pursuant to
an Agreement and Plan of Merger dated as of October 23, 1998 (the "Merger
Agreement"), these options have been converted to the right to acquire 584,774
shares of Watson Pharmaceuticals, Inc. ("Watson", "Company" or "Registrant")
common stock $0.0033 par value ("Common Stock").
(2) The number of shares set forth to be registered is the aggregate
number of shares of TheraTech common stock which could be purchased upon
exercise of all options issued outside of any plan adopted and implemented by
TheraTech. These options when granted were to be exercisable for shares of
TheraTech. Pursuant to the Merger Agreement, these options have been converted
to the right to acquire 36,883 shares of the Watson Common Stock.
(3) Represents the weighted average exercise price of options granted
under the Plan and all options granted outside of any plan, as adjusted to
reflect the Exchange Ratio in the Merger Agreement. Actual exercise prices range
from $ 3.13 to $58.21 per share.
(4) Registration Fee computed pursuant to Rule 457(h)(1)
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EXPLANATORY NOTE
This Registration Statement on Form S-8 relates to the shares of Watson
Common Stock issuable on exercise of the stock options held by officers,
consultants, and employees of TheraTech, Inc. ("TheraTech") that are eligible
to be registered on Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (d) 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, 1997, as amended.
(b) The Registrant's quarterly reports on Form 10-Q for the quarterly
periods ended March 31, 1998, June 30, 1998 and September 30,
1998, as amended.
(c) The Registrant's current reports on Form 8-K dated February 28,
1998, April 30, 1998, May 13, 1998 and November 18, 1998.
(d) The description of the Registrant's Common Stock contained in the
registration statement on Form 8-A dated April 3, 1992 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 LLC, Chicago, Illinois. Mr. Michel J. Feldman, a
Director of the Registrant and a member of D'Ancona & Pflaum LLC, owns 36,000
shares of the Registrant's Common Stock of which he disclaims beneficial
ownership of 1,000 shares. Other members of D'Ancona & Pflaum LLC beneficially
own additional shares of the registrant's Common Stock, which ownership is not
material in the aggregate.
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, provides
coverage of $30,000,000 in the aggregate (subject to a $250,000 retention per
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loss) 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 lawfully indemnifies the Registrant or as required or permitted by
law to indemnify its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
2.1 Agreement and Plan of Merger, among Watson Pharmaceuticals,
Inc., TheraTech, Inc. and The Jazz Merger Corp. dated as of
October 23, 1998, incorporated by reference to Appendix A of the
Proxy Statement/ Prospectus included in the Registration
Statement on S-4 Reg. No. 333-68007, and hereby incorporated by
reference.
3.1 Registrant's Articles of Incorporation, as amended, filed as
Exhibit 3.1 to Watson's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995 and exhibit 3.1 (A) to Watson's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1996 and hereby incorporated by reference.
3.2 Registrant's By-Laws, as amended as of December 11, 1998.
4.1 TheraTech, Inc. 1992 Amended and Restated Employees' Stock
Option Plan, incorporated by reference to TheraTech's Proxy
Statement filed in connection with its 1996 Annual Meeting of
Stockholders, and hereby incorporated by reference.
4.2 Form of option agreement for all options issued outside of any
plan.
5.1 Opinion of D'Ancona & Pflaum LLC as to the legality of the
common stock being offered
5.2 Opinion of Kummer, Kaempfer, Bonner & Renshaw as to the legality
of the common stock begin offered
23.1 Consent of D'Ancona & Pflaum LLC (included in Exhibit 5.1)
23.2 Consent of Kummer, Kaempfer, Bonner & Renshaw (included in
Exhibit 5.2)
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of Deloitte & Touche LLP
23.5 Consent of Arthur Andersen LLP
24.1 Power of Attorney, included on the signature page of the
Registration Statement.
</TABLE>
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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, 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.
(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 21st day of
January, 1999.
WATSON PHARMACEUTICALS, INC.
(Registrant)
By: /s/ ALLEN CHAO
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Chairman, Chief Executive Officer
and President
Each person whose signature appears below appoints Allen Chao, Ph.D.,
as his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his stead, in any 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 all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent 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 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 and on the dates indicated:
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ ALLEN CHAO Chairman, Chief Executive Officer and President January 21, 1999
- ----------------------------- and (Principal Executive Officer)
Allen Chao, Ph.D.
/s/ MICHAEL BOXER Chief Financial Officer January 21, 1999
- ----------------------------- (Principal Financial Officer)
Michael Boxer
/s/ CHATO ABAD Vice-President Finance January 21, 1999
- ----------------------------- (Principal Accounting Officer)
Chato Abad
/s/ MICHEL J. FELDMAN Director January 20, 1999
- -----------------------------
Michel J. Feldman
/s/ MICHAEL FEDIDA Director January 20, 1999
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Michael Fedida
Director January __, 1999
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Albert F. Hummel
/s/ RONALD R. TAYLOR Director January 20, 1999
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Ronald R. Taylor
Director January __, 1999
- -----------------------------
Alec D. Keith, Ph.D.
Director January __, 1999
- -----------------------------
Andrew L. Turner
</TABLE>
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EXHIBIT INDEX
<TABLE>
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2.1 Agreement and Plan of Merger, among Watson Pharmaceuticals,
Inc., TheraTech, Inc. and The Jazz Merger Corp. dated as of
October 23, 1998, incorporated by reference to Appendix A of the
Proxy Statement/ Prospectus included in the Registration
Statement on S-4 Reg. No. 333-68007, and hereby incorporated by
reference.
3.1 Registrant's Articles of Incorporation, as amended, filed as
Exhibit 3.1 to Watson's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1995 and exhibit 3.1 (A) to Watson's
Quarterly Report on Form 10-Q for the quarter ended June 30,
1996 and hereby incorporated by reference.
3.2 Registrant's By-Laws, as amended as of December 11, 1998.
4.1 TheraTech, Inc. 1992 Amended and Restated Employees' Stock
Option Plan, incorporated by reference to TheraTech's Proxy
Statement filed in connection with its 1996 Annual Meeting of
Stockholders, and hereby incorporated by reference.
4.2 Form of option agreement for all options issued outside of any
plan.
5.1 Opinion of D'Ancona & Pflaum LLC as to the legality of the
common stock being offered
5.2 Opinion of Kummer, Kaempfer, Bonner & Renshaw as to the legality
of the common stock being offered
23.1 Consent of D'Ancona & Pflaum LLC (included in Exhibit 5.1)
23.2 Consent of Kummer, Kaempfer, Bonner & Renshaw (included in
Exhibit 5.2)
23.3 Consent of PricewaterhouseCoopers LLP
23.4 Consent of Deloitte & Touche LLP
23.5 Consent of Arthur Andersen LLP
24.1 Power of Attorney, included on the signature page of the
Registration Statement.
</TABLE>
<PAGE> 1
EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
WATSON PHARMACEUTICALS, INC.
(as amended through December 11, 1998)
ARTICLE I
OFFICES AND SEAL
Section 1. Principal Office. The board of directors shall fix the
location of the principal office of the corporation at any place within or
outside the State of Nevada. If the principal office is located outside this
state, and the corporation has one or more business offices in this state, the
board of directors shall likewise fix and designate a principal business office
in the State of Nevada.
Section 2. Other Offices. The board of directors may at any time
establish branch or subordinate offices at any place or places where the
corporation is qualified to do business.
Section 3. Seal. The corporation shall have a common seal, and the same
shall have inserted thereon the words "Watson Pharmaceuticals, Inc.".
ARTICLE II
MEETINGS OF STOCKHOLDERS
Section 1. Place of Meetings. Meetings of stockholders shall be held at
any place within or outside the State of Nevada designated by the board of
directors. In the absence of any such designation, stockholders' meetings shall
be held at the principal office of the corporation.
Section 2. Annual Meeting. The annual meeting of stockholders shall be
held each year on a date and at a time designated by the board of directors. At
each annual meeting directors shall be elected in accordance with the provisions
of Article IV of the Articles of Incorporation of the Corporation, and any other
proper business may be transacted.
<PAGE> 2
Section 3. Special Meetings. A special meeting of the stockholders may
be called at any time by the board of directors, by the chairman of the board,
or by the president, or by one or more stockholders holding shares in the
aggregate entitled to cast not less than ten percent (10%) of the votes at that
meeting.
If a special meeting is called by any persons other than the board of
directors, the request shall be in writing, shall specify the time of such
meeting and the general nature of the business proposed to be transacted, and
shall be delivered personally or sent by registered mail or by telegraphic or
other facsimile transmission to the Chairman of the Board, or the President. The
officer receiving the request shall cause notice to be normally given to the
stockholders entitled to vote, in accordance with this Article. If the notice is
not given within twenty (20) days after receipt of the request, the person or
persons requesting the meeting may give the notice. Nothing contained in this
paragraph of this Section shall be construed as limiting, fixing or affecting
the time when a meeting of stockholders called by action of the board of
directors may be held.
Section 4. Notice of Stockholders' Meetings. All notices of meetings of
stockholders shall be sent or otherwise given, in accordance with this Article,
not less than ten (10) nor more than sixty (60) days before the date of the
meeting. The notice shall specify the place, date and hour of the meeting and
(a) in the case of a special meeting, the general nature of the business to be
transacted, or (b) in the case of the annual meeting, those matters which the
board of directors, at the time of giving the notice, intends to present for
action by the stockholders. The notice of any meeting at which directors are to
be elected shall include the name of any nominee or nominees whom, at the time
of the notice, management intends to present for election.
If action is proposed to be taken at any meeting for approval of (a) a
contract or transaction in which a director has a direct or indirect financial
interest, (b) an amendment of the articles of incorporation, (c) a
reorganization of the corporation, (d) a voluntary dissolution of the
corporation, or (e) a distribution in dissolution other than in accordance with
the rights of any outstanding preferred shares, the notice shall also state the
general nature of that proposal.
Section 5. Manner of Giving Notice; Affidavit of Notice. Notice of any
meeting of stockholders shall be given either personally or by first-class mail
or telegraphic or other written communication, charges prepaid, addressed to the
shareholder at the address of that shareholder appearing on the books of the
corporation or given by the shareholder to the corporation for the purpose of
notice. If no such address appears on the corporation's books or is given,
notice shall be deemed to have been given if sent to that shareholder by
first-class mail or telegraphic or other written communication to the
corporation's principal office, or if published at least once in a newspaper of
general circulation in the county where that office is located. Notice shall be
deemed to have been given at the time when delivered personally or deposited in
the mail or sent by telegram or other means of written communication.
If any notice addressed to a shareholder at the address of that
shareholder appearing on the books of the corporation is returned to the
corporation by the United States Postal Service marked to indicate that the
United States Postal Service is unable to deliver the notice to the shareholder
at that address, all future notices or reports shall be deemed to have been duly
given without further mailing if these shall be available to the shareholder on
written demand of the
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shareholder at the principal executive office of the corporation for a period of
one year from the date of the giving of the notice.
An affidavit of mailing or other means of giving any notice of any
stockholders' meetings shall be executed by the secretary, assistant secretary
or any transfer agent of the corporation giving the notice, and shall be filed
and maintained in the minute book of the corporation.
Section 5.1. Notice of Business. At an annual meeting of the
stockholders, only such business shall be conducted as shall have been brought
before the meeting (i) by or at the direction of the board of directors or (ii)
by any stockholder of the Corporation who complies with the notice procedures
set forth in this Article II, Section 5.1. For business to be properly brought
before an annual meeting by a stockholder, the stockholders must deliver written
notice to, or mail such written notice so that it is received by, the secretary
of the Corporation, at the principal executive offices of the Corporation, not
less than one hundred and twenty (120) or more than one hundred and fifty (150)
days prior to the first anniversary of the date of the Corporation's consent
solicitation or proxy statement released to stockholders in connection with the
previous year's election of directors or meeting of stockholders, except that if
no annual meeting of stockholders or election by consent was held in the
previous year or if the month of the annual meeting has been changed from the
previous year's meeting, a proposal shall be received by the Corporation within
ten (10) days after the Corporation has "publicly disclosed" the date of the
meeting in the manner provided in Article III, Section 5.1. The stockholder's
notice to the secretary shall set forth as to each matter the stockholder
proposes to bring before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (B) the name and address, as
they appear on the Corporation's books, of the stockholder proposing such
business, (C) the class and number of shares of the Corporation which are
beneficially owned by the stockholder, (D) a description of all arrangements or
understandings between such stockholder and any other person or persons
(including their names) in connection with the proposal of such business by such
stockholder and any other material interest of such stockholder in such business
and (E) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to bring such business before the meeting. At an
annual meeting, the presiding officer shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Article II, Section 5.1., and such
business not properly brought before the meeting shall not be transacted.
Whether or not the foregoing procedures are followed, no matter which is not a
proper matter for stockholder consideration shall be brought before the meeting.
Section 6. Quorum. The presence in person or by proxy of the holders of
a majority of the shares entitled to vote at any meeting of stockholders shall
constitute a quorum for the transaction of business. The stockholders present at
a duly called or held meeting at which a quorum is present may continue to do
business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum, if any action taken (other than
adjournment) is approved by such appropriate percentage of shares (as is
required to approve the proposed action) of the total shares required to
constitute a quorum.
Section 7. Adjourned Meeting; Notice. Any stockholders' meeting, annual
or special, whether or not a quorum is present, may be adjourned from time to
time by the vote of a majority
<PAGE> 4
of the shares represented at that meeting, either in person or be proxy, but in
the absence of a quorum, no other business may be transacted at the meeting,
except as provided in this Article.
When any meeting of stockholders, either annual or special, is adjourned
to another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at a meeting at which the adjournment is taken,
unless a new record date for the adjourned meeting is fixed, or unless the
adjournment is for more than forty-five (45) days from the date set for the
original meeting, in which case the board of directors shall set a new record
date. Notice of any such adjourned meeting shall be given to each shareholder of
record entitled to vote at the adjourned meeting in accordance with this
Article. At any adjourned meeting the corporation may transact any business
which might have been transacted at the original meeting.
Section 8. Voting. The stockholders entitled to vote at any meeting of
stockholders shall be determined in accordance with the provisions of this
Article, subject to any provision of law relating to voting shares held by a
fiduciary in the name of a corporation or joint ownership. Each shareholder
shall be entitled to one vote for each share of common stock held by such
shareholder. The stockholders' vote may be by voice vote or by ballot; provided,
however, that any election for directors must be by ballot if demanded by any
shareholder before the voting has begun. On any matter other than elections of
directors, any shareholder may vote part of the shares in favor of the proposal
and refrain from voting the remaining shares or may vote them all against the
proposal, but, if the shareholder fails to specify the number of shares which
the shareholder is voting affirmatively, it will be conclusively presumed that
the shareholder's approving vote is with respect to all shares that the
shareholder is entitled to vote. If a quorum is present, the affirmative vote of
the majority of the shares represented at the meeting and entitled to vote on
any matter (other than the election of directors) shall be the act of the
stockholders, unless the vote of a greater number of voting by classes is
required by the General Corporation Law of Nevada, by the corporation's articles
of incorporation or by these bylaws.
At a stockholders' meeting at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or more
candidates a number of votes greater than the number of the shareholder's
shares). The candidates receiving the highest number of votes, up to the number
of directors to be elected, shall be elected.
Section 9. Waiver of Notice or Consent by Absent Stockholders. The
transactions of any meeting of the stockholders, either annual or special,
however called and noticed, and wherever held, shall be as valid as though had
at a meeting duly held after regular call and notice, if a quorum is present
either in person or by proxy, and if, either before of after the meeting, each
person entitled to vote who was not present in person or by proxy signs a
written waiver of notice or a consent to a holding of the meeting or an approval
of the minutes. The waiver of notice or consent need not specify either the
business to be transacted or the purpose of any annual or special meeting of
stockholders, except that if action is taken or proposed to be taken for
approval of any of those matters specified in the second paragraph of Section 4
of this Article, the waiver of notice or consent shall state the general nature
of the proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
<PAGE> 5
Attendance by a person at a meeting shall also constitute a waiver of
notice of that meeting, except when the person objects at the beginning of the
meeting to the transaction of any business because the meeting is not lawfully
called or convened. Attendance at a meeting shall not be deemed a waiver of any
right to object to the consideration of matters not included in the notice of
the meeting if that objection is expressly made at the meeting.
Section 10. Shareholder Action by Written Consent Without a Meeting. Any
action which may be taken at any annual or special meeting of the stockholders
may be taken without a meeting and without prior notice, if a consent in
writing, setting forth the action so taken, is signed by the holders of
outstanding shares having not less than the minimum number of votes that would
be necessary to authorize or take that action at a meeting at which all shares
entitled to vote on that action were present and voted. All such consents shall
be filed with the secretary of the corporation and shall be maintained in the
corporate records. Any shareholder giving a written consent, or the
shareholder's proxy holders, or a transferee of the shares of a personal
representative of the shareholder or their respective proxy holders, may revoke
the consent by a writing received by the secretary of the corporation before
written consents of the number of shares required to authorize the proposed
action have been filed with the secretary.
If the consents of all stockholders entitled to vote have been solicited
in writing, and if the unanimous written consent of all such stockholders shall
not have been received, the secretary shall give prompt notice of the corporate
action approved by the stockholders without a meeting. The notice shall be given
in the manner specified in this Article.
Section 11. Record Date for Shareholder Notice, Voting and Giving
Consents. For purposes of determining the stockholders entitled to notice of any
meeting or to vote or entitled to give consent to corporate action without a
meeting, the board of directors may fix, in advance, a record date, which shall
not be more than sixty (60) days nor less than ten (10) days before the date of
any such meeting nor more than sixty (60) days before any such action without a
meeting, and in this event only stockholders of record on the date so fixed are
entitled to notice and to vote or to give consents, as the case may be,
notwithstanding any transfer of any shares on the books of the corporation after
the record date, except as may otherwise be provided in the General Corporation
Law of Nevada.
If the board of directors does not so fix a record date:
(a) The record date for determining stockholders entitled to notice of
or to vote at a meeting of stockholders shall be at the close of business on the
business day next preceding the day on which notice is given or, if notice is
waived, at the close of business on the business day next preceding the day on
which the meeting is held.
(b) The record date for determining stockholders entitled to give
consent to corporate action in writing without a meeting (i) when no prior
action by the board has been taken shall be the day on which the first written
consent is given, or (ii) when prior action of the board has been taken, shall
be at the close of business on the day on which the board adopts the resolution
relating to that action, or the sixtieth (60th) day before the date of such
other action, whichever is later.
<PAGE> 6
Section 12. Proxies. Every person entitled to vote for directors on any
other matter shall have the right to do so either in person or by one or more
agents authorized by a written proxy signed by the person and filed with the
secretary or the corporation. A proxy shall be deemed signed if the
shareholder's name is placed on the proxy (whether by manual signature,
typewriting, telegraphic transmission or otherwise) by the shareholder or the
shareholder's attorney in fact. A validly executed proxy which does not state
that it is irrevocable shall continue in full force and effect unless (a)
revoked by the person executing it before its next exercise, by a writing
delivered to the corporation stating that the proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in person
by, the person executing the proxy; or (b) written notice of the death or
incapacity of the maker of that proxy is received by the corporation before the
vote pursuant to that proxy is counted; provided, however, that no proxy shall
be valid after the expiration of six (6) months from the date of the proxy,
unless coupled with an interest, or unless otherwise provided in the proxy which
in no case shall exceed seven (7) years from the date of its creation. The
revocability of a proxy that states on its face that it is irrevocable shall be
governed by the provisions of the General Corporation Law of Nevada.
Section 13. Inspectors of Election. Before any meeting of stockholders,
the board of directors may appoint any persons other than nominees for office to
act as inspectors of election at the meeting or its adjournment. If no
inspectors of election are so appointed, the chairman of the meeting may, and on
the request of any shareholder or a shareholder's proxy shall, appoint
inspectors of election at the meeting. The number of inspectors shall be either
one (1) or three (3). If inspectors are appointed at a meeting on the request of
one or more stockholders or proxies, the holders of a majority of shares or
their proxies present at the meeting shall determine whether one (1) or three
(3) inspectors are to be appointed. If any person appointed as inspector fails
to appear or refuses to act, the chairman of the meeting may, and upon the
request of any shareholder of a shareholder's proxy shall, appoint a person to
fill that vacancy.
These inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum and the
authenticity, validity and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the result; and
(g) Do any other acts that may be proper to conduct the election or vote
with fairness to all stockholders.
<PAGE> 7
ARTICLE III
DIRECTORS
Section 1. Powers. Subject to the provisions of the General Corporation
Law of Nevada and any limitations in the articles of incorporation and these
bylaws relating to action required to be approved by the stockholders, the
business and affairs of the corporation shall be managed and all corporate
powers shall be exercised by or under the direction of the board of directors.
Without prejudice to such general powers, but subject to the same
imitations, it is hereby expressly declared that the directors shall have the
power and authority to:
(a) Select and remove all officers, agents, and employees of the
corporation, prescribe such powers and duties for them as may not be
inconsistent with law, with the articles of incorporation or these bylaws, fix
their compensation, and require from them security for faithful service.
(b) Change the principal office or the principal business office in the
State of Nevada from one location to another; cause the corporation to be
qualified to do business in any other state, territory, dependency, or foreign
country and conduct business within or outside the State of Nevada; designate
any place within or without the State of Nevada for the holding of any
stockholders' meeting, or meetings, including annual meetings; adopt, make and
use a corporate seal, and prescribe the forms of certificates of stock, and
alter the form of such seal and of such certificates from time to time as in
their judgment they may deem best, provided that such forms shall at all times
comply with the provisions of law.
(c) Authorize the issuance of shares of stock of the corporation from
time to time, upon such terms as may be lawful, in consideration of money paid,
labor done or services rendered, debts or securities cancelled or tangible or
intangible property actually received.
(d) Borrow money and incur indebtedness for the purposes of the
corporation, and cause to be executed and delivered therefore, in the corporate
name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges,
hypothecations, or other evidences of debt and securities therefor.
Section 2. Number of Directors. The number of directors which shall
constitute the whole board of directors shall be nine (9).
Section 3. Election and Term of Office of Directors. Directors shall be
elected at each annual meeting of the shareholders to hold office for the term
provided in Article VI of the Articles of Incorporation of the Corporation. Each
director, including a director elected to fill a vacancy, shall hold office
until the expiration of the term for which elected and until a successor has
been elected and qualified.
Section 4. Removal of Directors. Any director may be removed from office
with or without cause, at a meeting called expressly for that purpose, by the
vote or written consent of the holders of not less than two-thirds of the issued
and outstanding stock of the Corporation entitled to vote.
<PAGE> 8
Section 5. Vacancies. A vacancy or vacancies in the board of directors
shall be deemed to exist in the event of the death, resignation or removal of
any director, or if the board of directors by resolution declares vacant the
office of a director who has been declared of unsound mind by an order of court
or convicted of a felony, or if the authorized number of directors is increased,
or if the stockholders fail, at any meeting of stockholders at which any
director or directors are elected, to elect the number of directors to be voted
for at that meeting.
The vacancy may be filled by the remaining directors or by the
stockholders. Each director elected to fill a vacancy shall hold office until
the next annual meeting of the stockholders and until a successor has been
elected.
Any director may resign effective on giving written notice to the
chairman of the board, the president, the secretary or the board of directors,
unless the notice specifies a later time for that resignation to become
effective. If the resignation of a director is effective at a future time the
board of directors may elect a successor to take office when the resignation
becomes effective.
No reduction of the authorized number of directors shall have the effect
of removing any director before that director's term of office expires.
Section 5.1. Nominating Directors. Only persons who are nominated in
accordance with the following procedures shall be eligible to serve as
directors. Nominations of persons for election to the board of directors at a
meeting of stockholders may be made (i) by or at the direction of the board of
directors or (ii) by any stockholder of the Corporation entitled to vote for the
election of directors at the meeting who complies with the notice procedures set
forth in this Article III, Section 5.1. Such nominations, other than those made
by or at the direction of the board of directors, shall be made pursuant to
timely notice in writing to the secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to, or mailed and received by, the
secretary of the Corporation at the principal executive office of the
Corporation not less than sixty (60) or more than ninety (90) days prior to the
meeting; provided, however, that if the Corporation has not "publicly disclosed"
(in the manner provided in the last sentence of this Article III, Section 5.1.)
the date of the meeting at least seventy (70) days prior to the meeting date,
notice may be timely made by a stockholder under this Section if received by the
secretary of the Corporation not later than the close of business on the tenth
day following the day on which the Corporation publicly disclosed the meeting
date. Such stockholder's notice shall set forth (i) as to each person whom the
stockholder proposes to nominate for election or reelection as a director, (A)
the name, age, business address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the class and number of
shares of the Corporation which are beneficially owned by such person and (D)
and such other information relating to such person that is required to be
disclosed in solicitations of proxies for election of directors, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (including such person's written consent to being named
in the proxy statement as a nominee and to serving as director if elected); and
(ii) as to the stockholder giving notice (A) the name and address, as they
appear on the Corporation's books, of such stockholder, (B) the class and number
of shares of the Corporation which are beneficially owned by such stockholder
and (C) a representation that such stockholder intends to appear in person or by
proxy at the annual meeting to nominate the persons named in its notice. At the
<PAGE> 9
request of the board of directors any person nominated by the board of directors
for election as a director shall furnish to the secretary of the Corporation
such information required to be set forth in a stockholder's notice of
nomination which pertains to the nominee. No person shall be eligible to serve
as a director of the Corporation unless nominated in accordance with the
procedures set forth herein. The presiding officer shall, if the facts so
warrant, determine and declare to the meeting that a nomination was not made in
accordance with the procedures prescribed by the by-laws, and the defective
nomination shall be disregarded. For purposes of these by-laws, "publicly
disclosed" or "public disclosure" shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press, or a comparable
national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission.
Section 6. Place of Meetings and Meetings by Telephone. Regular meetings
of the board of directors may be held at any place within or outside the State
of Nevada that has been designated in the notice of meeting, or, if not so
stated in the notice or there is no notice, designated in these bylaws or from
time to time by resolution of the board. In the absence of such a designation,
regular meetings shall be held at the principal office of the corporation.
Special meetings of the board shall be held at any place within or outside the
State of Nevada that has been designated in the notice of the meeting or, if not
stated in the notice or there is no notice, at the principal executive office of
the corporation. Any meeting, regular or special, may be held by conference
telephone or similar communication equipment, so long as all directors
participating in the meeting can hear one another, and all such directors shall
be deemed to be present in person at the meeting.
Section 7. Annual Meeting. Immediately following each annual meeting of
stockholders, the board of directors shall hold a regular meeting for the
purposes of organization, any desired election of officers and the transaction
of other business. Notice of this meeting shall not be required.
Section 8. Other Regular Meetings. Other regular meetings of the board
of directors shall be held without call at such time as shall from time to time
be fixed by the board of directors. Such regular meetings may be held without
notice.
Section 9. Special Meetings. Special meetings of the board of directors
for any purpose or purposes may be called at any time by the chairman of the
board or the president or any vice president or the secretary or any two
directors.
Notice of the time and place of special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram charges prepaid, addressed to each director at that director's address
as it is shown on the records of the corporation. In case the notice is mailed,
it shall be deposited in the United States mail at least four (4) days before
the time of the holding of the meeting. In case the notice is delivered
personally, or by telephone or telegram, it shall be delivered personally or by
telephone or to the telegraph company at least forty-eight (48) hours before the
time of the holding of the meeting. Any oral notice given personally or by
telephone may be communicated either to the director or to a person at the
office of the director who the person giving the notice has reason to believe
will promptly
<PAGE> 10
communicate it to the director. The notice need not specify the purpose of the
meeting nor the place if the meeting is to be held at the principal executive
office of the corporation.
Section 10. Quorum. Three-fourths (3/4ths) of the then acting number of
directors shall constitute a quorum for the transaction of business, except to
adjourn as provided in Section 12 of this Article. Every act or decision done or
made by a majority of the directors present at a meeting duly held at which a
quorum is present shall be regarded as the act of the board of directors,
subject to the provisions of the General Corporation Law of Nevada. A meeting at
which a quorum is initially present may continue to transact business
notwithstanding the withdrawal of directors, if any action taken is approved by
a least a majority of the required quorum for that meeting.
Section 11. Waiver of Notice. The transaction of any meeting of the
board of directors, however called and noticed or wherever held, shall be as
valid as though had at a meeting duly held, after regular call and notice if a
quorum is present and if, either before or after the meeting, each of the
directors not present signs a written waiver of notice, a consent to holding the
meeting or an approval of the minutes. The waiver of notice or consent need not
specify the purpose of the meeting. All such waivers, consents and approvals
shall be filed with the corporate records or made a part of the minutes of the
meeting. Notice of a meeting need not be or have been given to any director who
attends the meeting without protesting before or at its commencement, the lack
of notice to that director.
Section 12. Adjournment. A majority of the directors present, whether or
not constituting a quorum, may adjourn any meeting to another time and place.
Section 13. Notice of Adjournment. Notice of the time and place of
holding an adjourned meeting need not be given unless the meeting is adjourned
for more than twenty-four (24) hours, in which case notice of the time and place
shall be given before the time of the adjourned meeting, in the manner specified
in Section 10 of this Article, to the directors who were not present at the time
of the adjournment.
Section 14. Action Without Meeting. Any action required or permitted to
be taken by the board of directors may be taken without a meeting, if all
members of the board shall individually or collectively consent in writing to
that action. Such action by written consent shall have the same force and effect
as a unanimous vote of the board of directors. Such written consent or consents
shall be filed with the minutes of the proceedings of the board.
Section 15. Fees and Compensation of Directors. Directors and members of
committees may receive such compensation, if any, for their services, and such
reimbursements of expenses, as may be fixed or determined by resolution of the
board of directors. This Section shall not be construed to preclude any director
from serving the corporation in any other capacity as an officer, agent,
employee or otherwise, and receiving compensation for those services.
<PAGE> 11
ARTICLE IV
COMMITTEES
Section 1. Committees of Directors. Committees are of two kinds, those
having legal authority to act for the corporation and advisory committees. The
board of directors may, by resolution adopted by a majority of the authorized
number of directors, designate one or more committees, each committee to consist
of one or more directors of the corporation, which to the extent provided in the
resolution, shall have and may exercise the power of the board of directors in
the management of the business and affairs of the corporation. The board may
designate one or more directors as alternate members of any such committee, who
may replace any absent member at any meeting of the committee.
Section 2. Meetings and Action of Committees with Authority. Meetings
and action of committees having legal authority to act for the corporation shall
be governed by, and held and taken in accordance with, the provisions of Article
III of these bylaws, section 6 (place of meetings ), Section 8 (regular
meetings), Section 9 (special meetings and notice), Section 12 (adjournment),
Section 13 (notice of adjournment), and Section 14 (action without meeting),
with such changes in the context of those bylaws as are necessary to substitute
the committee and its members for the board of directors and its members, except
that the time of regular meetings of committees may be determined either by
resolution of the board of directors or by resolution of the committee; special
meetings of committees may also be called by resolution of the board of
directors; and notice of a special meeting of committees shall also be given to
all alternate members, who shall have the right to attend all meetings of the
committee. The board of directors may adopt rules for the government of any
committee not inconsistent with the provisions of these bylaws.
Section 3. Advisory Committees. Advisory Committees may be appointed to
consist of one or more members. Advisory committee membership may consist of
directors only or both directors and nondirectors or nondirectors only, and also
may include nonvoting members and alternate members. Advisory Committees have no
legal authority to act for the corporation, but shall report their findings and
recommendations to the board of directors. Members of Advisory Committees shall
receive such compensation, if any, as may be established by resolution of the
board of directors.
ARTICLE V
OFFICERS
Section 1. Officers. The officers of the corporation shall be a
chairman, a vice-chairman, a president, a secretary, a treasurer and a resident
agent. The corporation may also have, at the discretion of the board of
directors, one or more vice presidents and such other officers as may be
appointed in accordance with the provisions of Section 3 of this Article. Any
number of offices may be held by the same person.
Section 2. Appointment of Officers. The officers of the corporation,
except such officers as may be appointed in accordance with the provisions of
Section 3 or Section 5 of this Article,
<PAGE> 12
shall be appointed by the board of directors, and each shall serve at the
pleasure of the board, subject to the rights, if any, of an officer under any
contract of employment:
(a) Any officer appointed by the board of directors may be removed from
office at any time by the board of directors, with or without cause or prior
notice. Any officer not appointed by the board of directors may be removed from
office at any time by the officer by whom appointed or by the board of
directors, with or without cause or prior notice.
(b) When authorized by the board of directors, any officer may be
appointed for a specified term under a contract of employment. Notwithstanding
that such officer is appointed for a specified term or under the contract of
employment, such officer may be removed from office at any time pursuant to
paragraph (a) above and shall have no claim against the corporation on account
of such removal other than for such monetary compensation as the officer may be
entitled to under the terms of the contract of employment.
Section 3. Subordinate Officers. The board of directors may appoint, and
may empower the president to appoint, such other officers as the business of the
corporation may require, each of whom shall hold office for such period, have
such authority and perform such duties as are provided in the bylaws or as the
board of directors may from time to time determine.
Section 4. Removal and Resignation of Officers. Subject to the rights,
if any, of an officer under any contract of employment, any officer may be
removed, either with or without cause, by the board of directors at any regular
or special meeting of the board, or, except in case of an officer chosen by the
board of directors, by any officer upon whom such power of removal may be
conferred by the board of directors.
Any officer may resign at any time by giving written notice to the
corporation. Any resignation shall take effect at the date of the receipt of
that notice or at any later time specified in that notice; and, unless otherwise
specified in that notice, the acceptance of the resignation shall not be
necessary to make it effective. Any resignation is without prejudice to the
rights, if any, of the corporation under any contract to which the officer is a
party.
Section 5. Vacancies in Offices. A vacancy in any office because of
death, resignation, removal, disqualification or any other cause shall be filled
in the manner prescribed in these bylaws for regular appointments to that
office.
Section 6. Chairman of the Board. The chairman of the board shall, if
present, preside at meetings of the board of directors and exercise and perform
such other powers and duties as may be assigned to him from time to time by the
board of directors or prescribed by the bylaws.
Section 7. Vice Chairman. The vice chairman of the corporation shall, in
the absence of the chairman, preside at all meetings of its board of directors
and shall perform the duties, if any, assigned to the chairman of the board by
the board of directors or prescribed by its bylaws.
Section 8. Chief Executive Officer. Subject to the direction and control
of the board of directors, the chief executive officer shall be in charge of the
over-all business of the corporation, and shall have general supervision,
direction and control of the business and affairs
<PAGE> 13
of the corporation. He shall have the general powers and duties of management
usually vested in the office of chief executive officer of a corporation, and
shall have such other powers and duties as may be prescribed by the board of
directors or the bylaws. In the absence of the chairman, the chief executive
officer shall perform the duties of and shall be vested with all the powers of
the chairman.
Section 9. President. The president shall, subject to the control of the
board of directors and the chief executive officer, have general and active
management of the day-to-day business of the corporation. The president may sign
and execute all instruments in the name of the corporation. In the absence of
the Chairman and the Chief Executive Officer, the President shall be vested with
all the powers of the Chairman and the Chief Executive Officer.
Section 10. Vice Presidents. In the absence or disability of the
president, the vice presidents, if there shall be such officers, in order of
their rank as fixed by the board of directors, or if not ranked, a vice
president designated by the board of directors, shall perform all the duties of
the president, and when so acting shall have all the powers of, and be subject
to all the restrictions upon, the president. The vice presidents shall have such
other powers and perform such other duties as from time to time may be
prescribed for them respectively by the board of directors, the bylaws, the
president, or the chairman of the board.
Section 11. Secretary. The secretary shall keep or cause to be kept, at
the principal executive office or such other place as the board of directors may
direct, a book of minutes of all meetings and actions of directors, committees
of directors, and stockholders, with the time and place of holding, whether
regular or special, and if special, how authorized, the notice given, the names
of those present at directors' meetings or committee meetings, the number of
shares present or represented at stockholders' meetings, and a summary of the
proceedings.
The secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, as determined by resolution of the board of directors, a share
register, or a duplicate share register, showing the names of all stockholders
and their addresses, the number and classes of shares held by each, the number
and date of certificates issued for the same, and the number and date of
cancellation of every certificate surrendered for cancellation.
The secretary shall give, or cause to be given, notice to all meetings
of the shareholder and of the board of directors required by the bylaws or by
law to be given, and he shall keep the seal of the corporation if one be
adopted, in safe custody, and shall have such other powers and perform such
other duties as may be prescribed by the board of directors or by the bylaws.
Section 12. Treasurer. The treasurer shall keep and maintain, or cause
to be kept and maintained, adequate and correct books and records of accounts of
the properties and business transactions of the corporation, including accounts
of its assets, liabilities, receipts, disbursements, gains, losses, capital,
retained earnings and shares. The books of account shall at all reasonable times
be open to inspection by any director.
The treasurer shall deposit, or cause to be deposited, all moneys and
other valuables in the name and to the credit of the corporation with such
depositaries as may be designated by the
<PAGE> 14
board of directors. He shall disburse, or cause to be disbursed, the funds of
the corporation as may be ordered by the board of directors, shall render to the
president and directors, whenever they request it, an account of all of his
transactions as treasurer and of the financial condition of the corporation, and
shall have such other powers and perform such other duties as may be prescribed
by the board of directors or the bylaws.
Section 13. Reimbursement of Corporation. Any payments made to an
officer of the corporation such as a salary, commission, bonus, interest, or
rent, or entertainment expense incurred by him, which shall be disallowed in
whole or in part as a deductible expense by the Internal Revenue Service, shall
be reimbursed by such officer to the corporation to the full extent of such
disallowance. It shall be the duty of the board to enforce payment by the
officer, subject to the determination of the board, proportionate amounts may be
withheld from his future compensation payments until the amount owned to the
corporation has been recovered.
ARTICLE VI
INDEMNIFICATION OF
DIRECTORS, OFFICERS, EMPLOYEES
AND OTHER AGENTS
Section 1. Agents, Proceedings and Expenses. For the purposes of this Article,
"agent" means any person who is or was a director, officer, employee or other
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprises, or was a
director, officer, employee or agent of a foreign or domestic corporation which
was a predecessor corporation of the corporation or of another enterprise at the
request of such predecessor corporation; "proceeding" means any threatened,
pending or completed action or proceeding, whether threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" includes , without limitation, attorneys' fees and
any expenses of establishing a right to indemnification.
Section 2. Actions Other Than by the Corporation. The corporation may
indemnify any person who was or is a party, or is threatened to be made a party,
to any proceeding by reason of the fact that such person is or was an agent of
the corporation, against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such proceeding to
the full extent permitted by the General corporation Law of Nevada as may be in
effect from time to time.
Section 3. Insurance. Upon and in the event of a determination by the
board of directors of the corporation to purchase such insurance, the
corporation shall purchase and maintain, insurance on behalf of any agent of the
corporation against any liability asserted against or incurred by the agent in
such capacity or arising out of the agent's status as such whether or not the
corporation would have the power to indemnify the agent against such liability
under the provisions of this section.
Section 4. Fiduciaries of Corporate Employee Benefit Plan. This Article
does not apply to any proceeding against any trustee, investment manager or
other fiduciary of an employee
<PAGE> 15
benefit plan in such person's capacity as such, even though such person may also
be an agent of the corporation as defined in Section 1 of this Article. Nothing
contained in this Article shall limit any right to indemnification to which such
a trustee, investment manager or other fiduciary may be entitled by contract or
otherwise, which shall be enforceable to the extent permitted by applicable law
other than this Article.
VII
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Share Register. The corporation
shall keep at its principal office, or at the office of its transfer agent or
registrar, if either be appointed and as determined by resolution of the board
of directors, a record of its stockholders, giving the names and addresses of
all stockholders and the number and class of shares held by each shareholder.
To the extent required by the General Corporation Law of Nevada, a
shareholder or stockholders of the corporation may (a) inspect and copy the
records of stockholders' names and addresses and shareholdings during usual
business hours on five (5) days prior written demand on the corporation, and (b)
obtain from the transfer agent of the corporation, on written demand and on the
tender of such transfer agent's usual charges for such list, a list of the names
and addresses of the stockholders who are entitled to vote for the election of
directors and their shareholdings, as of the most recent record date for which
that list has been compiled or as of a date specified by the shareholder after
the date of demand. This list shall be made available to any such shareholder by
the transfer agent on or before the later of five (5) days after the demand is
received or the date specified in the demand as the date as of which the list is
to be compiled.
Section 2. Maintenance and Inspection of Articles and Bylaws. The
corporation shall keep at its principal office the original or a copy of the
Articles and bylaws as amended to date, which shall be open to inspection by the
stockholders as required by the General Corporation Law of Nevada, at all
reasonable times during office hours.
Section 3. Maintenance and Inspection of Other Corporate Records. The
accounting books and records and minutes of proceedings of the stockholders and
the board of directors and any committee or committees of the board of directors
shall be kept at such place or places designated by the board of directors, or,
in the absence of such designation, at the principal office of the corporation.
The minutes shall be kept in written form and the accounting books and records
shall be kept either in written form or in any other form capable of being
converted into written form. The minutes and accounting books and records shall
be open to inspection as required by the General Corporation Law of Nevada upon
the written demand of any shareholder or holder of a voting trust certificate,
who holds the requested stock percentage or appropriate written authorizations,
at any reasonable time during usual business hours, for a purpose reasonably
related to the holders's interests as a shareholder or as the holder of a voting
trust certificate. The inspection may be made in person or by an agent or
attorney and shall include the right to copy and make extracts.
Section 4. Inspection by Directors. As required by the General
Corporation Law of Nevada, every director shall have the absolute right at any
reasonable time to inspect all books,
<PAGE> 16
records and documents of every kind and the physical properties of the
corporation and each of its subsidiary corporations. This inspection by a
director may be made in person or by an agent or attorney and the right of
inspection includes the right to copy and make extracts of documents.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice and Voting. For
purposes of determining the stockholders entitled to receive payment of any
dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any other lawful action (other than action by
stockholders by written consent without a meeting), the board of directors may
fix, in advance, a record date, which shall not be more than sixty (60) days
before any such action, and in that case only stockholders of record on the date
so fixed are entitled to receive the dividends, distribution or allotment of
rights or to exercise the rights, as the case may be, notwithstanding any
transfer of any shares on the books of the corporation after the record date so
fixed, except as otherwise provided in the General Corporation Law of Nevada.
If the board of directors does not so fix a record date, the record date
for determining the stockholders for any such purpose shall be at the close of
business on the day on which the board adopts the applicable resolution or the
sixtieth (60th) day before the date of that action, whichever is later.
Section 2. Checks, Drafts, Evidences of Indebtedness. All checks,
drafts, or other orders for payment of money, notes, or other evidences of
indebtedness, issued in the name of or payable to the corporation, shall be
signed or endorsed by such person or persons and in such manner as, from time to
time, shall be determined by resolution of the board of directors.
Section 3. Corporate Contracts and Instruments; How Executed. The board
of directors, except as otherwise provided in these bylaws, may authorize any
officer or officers, agent or agents, to enter into any contract or execute any
instrument in the name of and on behalf of the corporation, and this authority
may be general or confined to specific instances; and, unless so authorized or
ratified by the board of directors or within the agency power of any officer, no
officer, agent, or employee shall have any power or authority to bind the
corporation by any contract or engagement or to pledge its credit or to render
it liable for any purpose or for any amount.
Section 4. Certificates for Shares. A certificate or certificates for
shares of the capital stock of the corporation shall be issued to each
shareholder when any of these shares are fully paid, and the board of directors
may authorize the issuance of certificates or shares as partly paid provided
that these certificates shall state the amount of the consideration to be paid
for them and the amount paid. All certificates shall be signed in the name of
the corporation by the chairman of the board, vice chairman of the board, the
president, chief executive officer or vice president and by the chief financial
officer, the secretary or any assistant secretary, certifying the number of
shares and the class or series of shares owned by the shareholder. Any or all of
the signatures on the certificate may be facsimile. In case any officer,
transfer agent or registrar who has signed or whose facsimile signature has been
placed on a certificate shall have ceased to be that
<PAGE> 17
officer, transfer agent, or registrar before that certificate is issued, it may
be issued by the corporation with the same effect as if that person were an
officer, transfer agent or registrar at the date of issue.
Section 5. Lost Certificates. Except as provided in this Section 5, no
new certificates for shares shall be issued to replace an old certificate unless
the latter is surrendered to the corporation and cancelled at the same time. The
board of directors may, in case any share certificate or certificate for any
other security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the board may require,
including provision for indemnification of the corporation secured by a bond or
other adequate security sufficient to protect the corporation against any claim
that may be made against it, including any expense or liability, on account of
alleged loss, theft or destruction of the certificate or the issuance of the
replacement certificate.
Section 6. Representation of Shares of Other Corporations. The chairman
of the board, the vice chairman, the president, or any vice president, or any
other person authorized by resolution of the board of directors or by any of the
foregoing designated officers, is authorized to vote on behalf of the
corporation any and all shares of any other corporation or corporations, foreign
or domestic, standing in the name of the corporation. The authority granted to
these officers to vote or represent on behalf of the corporation any and all
shares held by the corporation in any other corporation or corporations may be
exercised by any of these officers in person or by any person authorized to do
so by a proxy duly executed by these officers.
Section 7. Construction and Definitions. Unless the context requires
otherwise, the general provisions, rules of construction, and definitions in the
General Corporation Law of Nevada shall govern the construction of these bylaws.
Without limiting the generality of this provision, the masculine gender includes
the feminine and neuter, the singular number includes the plural, the plural
number includes the singular, and the term "person" includes both a corporation
and a natural person.
ARTICLE IX
AMENDMENTS
Section 1. The power to make, alter, amend or repeal the bylaws shall be
vested in the board of directors. The bylaws may contain any provisions for the
regulation and management of the affairs of the corporation not inconsistent
with law or the articles of incorporation.
<PAGE> 1
EXHIBIT 4.2
FORM OF STOCK OPTION AGREEMENT FOR
OPTIONS ISSUED OUTSIDE ANY PLAN
THIS STOCK OPTION AGREEMENT (this "Agreement"), dated __________ ____,
_______, is between THERATECH, INC., a Delaware corporation ("TTI"), and
____________________________, an individual ("Holder").
Recitals
--------
WHEREAS, in return for services rendered to TTI by the Holder
and/or to induce Holder to remain in its employ, TTI desires to grant to the
Holder an option to purchase shares of TTI's $0.0l par value common stock (the
"Stock") upon the terms and conditions of this Agreement.
Agreement
---------
In consideration of the mutual promises, covenants and
conditions hereinafter set forth, and for other good and valuable consideration,
the parties hereby agree as follows:
1. The Option. TTI hereby grants to Holder the right, subject
to the terms set forth hereinafter, to purchase from TTI fully paid and
nonassessable shares of Stock upon the terms and as set forth in the option
attached hereto as Exhibit A (the "Option"). The price per share and the number
of shares of Stock issuable upon the exercise of the Option are subject to
adjustment upon the occurrence of certain events set forth in this Agreement.
2. Exercise of Option. Upon surrender to TTI at its principal
office in Salt Lake City, Utah, of the Option to be exercised, together with
delivery of the form of subscription attached to the Option duly completed and
executed, and upon payment to TTI of the price payable therefor, Stock shall be
issued. Payment shall be made in cash or by certified or cashier's check. Upon
surrender of the Option and payment of the applicable sum, TTI shall issue and
deliver to Holder a certificate or certificates in the name of Holder for the
number of full shares of Stock purchased together with any cash, as provided in
section 6 hereof, for any fractional shares of stock otherwise issuable upon
such surrender. Such certificate or certificates shall have been issued and any
person named therein shall become a holder of record of Stock as of the date of
the surrender of the Option and payment of the appropriate
1
<PAGE> 2
price; provided, however, that if at the date of surrender of the Option and
payment, the transfer books for the shares of Stock or other class of stock
purchasable upon the exercise of the Option shall be closed, the certificates
for Stock for which the Option is exercised shall be issuable as of the date on
which such books shall next be opened, and until that date TTI shall be under no
duty to deliver any certificate for shares of Stock; provided, however, that the
transfer books of record, unless otherwise required by law, shall not be closed
at any one time for a period longer than thirty days. The rights of purchase
represented by the Option shall be exercisable, at the election of Holder,
either in full or in part. If an Option is exercised for less than all of the
shares of Stock specified therein at any time prior to the date of expiration of
such Option, a new option evidencing the unexercised portion of the Option will
be issued by TTI.
3. Payment of Taxes. TTI will pay all documentary stamp taxes,
if any, attributable to the initial issuance of the shares of Stock upon the
exercise of the Option; provided, however, that TTI shall not be required to pay
any tax or taxes that may be payable because of any secondary transfer which may
be involved in the issuance or delivery of the Option or certificates for the
shares of Stock delivered upon exercise of the Option.
4. Reservation of Shares of Stock. There has been reserved out
of the Stock, and TTI shall keep reserved, the number of shares sufficient to
provide for the exercise of the rights of purchase represented by the
outstanding Option. The transfer agent for the shares and every subsequent
transfer agent will be irrevocably authorized and directed to reserve such
number of authorized shares as shall be requisite for such purpose. TTI will
keep a copy of this Agreement on file with the transfer agent for the shares and
with every subsequent transfer agent. TTI will supply the transfer agent with
duly executed stock certificates for such purpose, and will provide or otherwise
make available any cash which may be payable as provided in section 6 of this
Agreement.
5. Adjustment of Option Price and Number of Shares. The number
and kind of securities purchasable upon the exercise of the Option and the price
therefor shall be subject to adjustment, from time to time, upon the happening
of certain events as follows:
(a) Adjustments. The number of shares of Stock
purchasable upon the exercise of the Option and the price
therefor shall be subject to adjustment as follows:
2
<PAGE> 3
(i) If at any time on or after the date hereof, the
holders of Stock shall have received, or after the record date
fixed for the determination of eligible shareholders, shall
have become entitled to receive, without payment therefor in
cash, services or other consideration:
(A) other or additional shares of
Stock or other securities or property (other
than cash) by way of dividend;
(B) any cash paid or payable
otherwise than out of retained earnings; or
(C) other or additional shares of
Stock or other securities or property
(including cash) by way of stock-split,
spin-off, split-up, reclassification,
combination of shares or similar corporate
rearrangement; then, and in each such case,
Holder shall be entitled upon the exercise
of the Option, to receive in addition to the
number of shares receivable thereupon, and
without payment of any additional
consideration, the number of shares and
other securities and property (including
cash in the cases referred to in clauses (B)
and (C) above) which Holder would hold on
the date of exercise had Holder been the
holder of record of shares of Stock on the
date hereof and had thereafter, during the
period from the date hereof to and including
the date of exercise, retained such shares
and/or all other additional stock and other
securities and property (including cash in
the cases referred to in clauses (B) and (C)
above) receivable by Holder during such
period.
(ii) If there is any reclassification or
change of the outstanding securities of TTI or any
reorganization of TTI (or any other corporation, the
stock or other securities of which are at the time
receivable upon exercise of the Option) on or after
the date hereof, or if TTI (or any such other
corporation) shall consolidate with or merge into
another corporation or convey all, or substantially
all, of its assets to another corporation, then
Holder shall, upon the exercise of the Option at any
time after the consummation of such reclassification,
reorganization, consolidation, merger or conveyance
be entitled to receive, in lieu of the stock or other
securities and property receivable upon the exercise
of the Option prior to such consummation, the shares
or
3
<PAGE> 4
other securities or property to which Holder would
have been entitled upon consummation, if Holder had
exercised the Option immediately prior thereto, all
subject to further adjustment as provided herein. The
provisions of this subparagraph (ii) shall similarly
apply to successive reclassifications,
consolidations, mergers, sales or transfers.
(iii) Whenever the number of shares of Stock
purchasable upon the exercise of the Option or the
price is adjusted as herein provided, TTI shall cause
to be promptly mailed to Holder by first class mail,
postage prepaid, notice of adjustment and a statement
setting forth the number of shares of Stock
purchasable upon the exercise of the Option, and the
price after such adjustment, a brief statement of the
facts requiring such adjustment, and the computation
by which such adjustment was made.
(iv) For the purposes of this section 5(a),
the term "Stock" shall include any class of stock
resulting from successive changes or
reclassifications of shares of Stock consisting
solely of changes in par value, or from par value to
no par value, or from no par value to par value. If
at any time, as a result of any adjustment made
pursuant to this section 5, Holder shall become
entitled to purchase any shares of TTI other than
shares of Stock, the number of such other shares
purchasable upon exercise of the Option and the price
of such shares shall be subject to the adjustment
from time to time in a manner and on terms as nearly
equivalent as practicable to the provisions with
respect to the shares of Stock contained in this
section 5.
(b) Preservation of Purchase Rights Upon
Reclassification, Consolidation, etc. In case of any
consolidation of TTI with, or merger of TTI into, another
corporation, or in case of any sale or conveyance to another
corporation of all or substantially all of the property of
TTI, TTI, or such successor or purchasing corporation, shall
execute with Holder an agreement that Holder shall have the
rights thereafter to purchase upon exercise of the Option the
kind and amount of shares of Stock and other securities and
property which Holder would have owned or have been entitled
to receive after the happening of such consolidation, merger,
sale or action if Holder had exercised the Option immediately
prior thereto. Such agreement shall provide for adjustments,
which shall be as nearly equivalent as may be practicable to
the adjustments provided for in this section 5. The provisions
of this
4
<PAGE> 5
section 5(b) shall similarly apply to successive
consolidations, mergers, sales or conveyances.
(c) Statement on Option. Notwithstanding any
adjustments in the price or the number or kind of shares
purchasable upon the exercise of the Option, the Option issued
may continue to express the same price and number and kind of
shares as are stated in the Option initially issuable pursuant
to this Agreement.
6. Fractional Interests. TTI shall not be required to issue
fractional shares upon the exercise of the Option. If any fraction of a share
would, except for the provisions of this section 6, be issuable on the exercise
of the Option, TTI shall pay an amount in cash equal to the then current fair
market price multiplied by such fraction.
7. No Rights as Shareholder; Notices. Nothing contained in
the Agreement or the Option shall be construed as conferring upon Holder or
Holder's transferees any rights whatsoever as a shareholder of TTI, including
the right to vote, receive dividends, consent or receive notices as a
shareholder in respect of any meeting of shareholders for the election of
directors of TTI or any other matter. If, however, at any time prior to the
expiration of the Option and prior to complete exercise thereof, any of the
following events shall occur: (a) TTI shall declare any dividend payable in the
securities upon its shares of Stock or make any distribution (other than a cash
dividend) to the holders of Stock; (b) TTI shall offer to the holders of Stock
any additional securities convertible into Stock or any right to subscribe
thereto; or (c) a dissolution, liquidation or winding up of TTI (other than in
connection with a consolidation, merger or sale of all or substantially all of
its assets) shall be proposed; then in any one or more of the above events, TTI
shall give notice of such event, in writing, to Holder at least twenty days
prior to the date fixed as a record date or the date of closing the transfer
books for the determination of the shareholders entitled to such dividend,
distribution or subscription rights, or for the determination of shareholders
entitled to vote on such proposed dissolution, liquidation or winding up. Such
notice shall specify the record date or the date of closing the transfer books,
as the case may be.
8. Restrictive Legends. Each certificate for Stock and each
Option issued hereunder shall bear any legends required under the federal
securities laws.
5
<PAGE> 6
9. Notices. Any notice pursuant to this Agreement shall be
made in writing and shall be deemed to have been duly given if delivered or
mailed postage prepaid, by certified mail, return receipt requested,
To TTI: 4l7 Wakara Way
------- Suite 100
Salt Lake City, UT 84l08
To Holder:
----------
Each party hereto may from time to time change the address to which notices are
to be delivered or mailed by notice to the other party in accordance with this
section 9.
10. Successors. All the covenants and provisions of this
Agreement by or for the benefit of either party shall bind and inure to the
benefit of their respective successors and assigns hereunder.
11. Merger or Consolidation of TTI. TTI will not merge or
consolidate with or into any other corporation unless the corporation resulting
from such merger or consolidation shall expressly assume, by supplemental
agreement satisfactory in form to Holder and duly executed and delivered to
Holder, the due and punctual performance and observance of each and every
covenant and condition of this Agreement to be performed and observed by TTI.
12. Survival of Representations and Option. All statements
contained in any instrument delivered by or on behalf of the parties hereto, or
in connection with the transactions contemplated by this Agreement, shall be
deemed to be representations and options hereunder. Notwithstanding any
investigations made by or on behalf of the parties to this Agreement, all
representations, warranties and
6
<PAGE> 7
agreements made by the parties to this Agreement or pursuant hereto shall
survive, except that if a party hereto has actual knowledge at the date hereof,
of facts which would constitute a breach. Such breach shall be waived by such
party if such party consummates the transactions contemplated by this Agreement.
13. Applicable Law. This Agreement and the Option issued
hereunder shall be deemed to be a contract made under the laws of the State of
Delaware and for all purposes shall be construed in accordance with Delaware
law.
14. Benefits of this Agreement. Nothing in this Agreement
shall be construed to give any person or corporation other than TTI and Holder
any legal or equitable right, remedy or claim under this Agreement and this
Agreement shall be for the sole and exclusive benefit of TTI and Holder.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement on the respective dates set forth below, to be effective for all
purposes as of the day and year first above written.
THERATECH, INC.
Date: By:
------------------- --------------------------------------------
Dinesh C. Patel, Ph.D.
President & Chief Executive Officer
Date:
-------------------
7
<PAGE> 8
No. A
EXHIBIT A
OPTION TO PURCHASE __________ SHARES OF COMMON
STOCK COMMENCING _____________________
AND VOID 5 YEARS AFTER THAT DATE
THERATECH, INC.
A Delaware Corporation
This certifies that, for value received, ___________________,
the registered holder hereof (the "Optionholder"), is,
IF, BUT ONLY IF, __________________ HAS REMAINED IN THE EMPLOY
OF THERATECH, INC. CONTINUOUSLY FROM ______________________ THROUGH
__________________________, entitled to purchase from TheraTech, Inc., a
Delaware corporation (the "Company"), at any time from __________ to __________,
at the purchase price of $__________ per share, (the "Option Price"), the number
of shares of Common Stock, $0.0l par value per share, of the Company set forth
above. The number of shares purchasable upon exercise of this Option and the
Option Price per share shall be subject to adjustment from time to time as set
forth in the Option Agreement referred to below.
This Option may be exercised in whole or in part by
presentation of this Option with the Form of Subscription attached hereto duly
executed and simultaneous payment of the Option Price (subject to adjustment) at
the principal office of the Company in Salt Lake City, Utah. Payment of such
price shall be made at the option of the Optionholder in cash or by certified
funds.
This Option evidences the right to purchase an aggregate of up
to __________ shares of Common Stock, $0.0l par value per share, of the Company
and is issued under and in accordance with a STOCK OPTION AGREEMENT dated as of
___________________ (the "Option Agreement"), between the Company and the
Optionholder and is subject to the terms and provisions contained in the Option
Agreement, to all of which the Optionholder of this Option by acceptance hereof
consents.
A-1
<PAGE> 9
Upon any partial exercise of this Option, there shall be
signed and issued to the Optionholder, a new Option in respect to the shares as
to which this Option shall not have been exercised. No fractional shares will be
issued hereunder, but the Company shall pay the cash value of any fraction upon
the exercise of one or more Options.
This Option does not entitle the Optionholder to any of the
rights of a shareholder of the Company.
Dated as of this ____ day of ___________________, 1993.
THERATECH, INC.
By:
-----------------------------------
Dinesh C. Patel, Ph.D.
President and
Chief Executive Officer
A-2
<PAGE> 1
EXHIBIT 5.1
January 21, 1999
Watson Pharmaceuticals, Inc.
311 Bonnie Circle
Corona, CA 91720
Ladies & 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 621,657 shares of the
Company's common stock, $.0033 par value ("Common Stock"), under the terms of
the TheraTech, Inc. 1992 Amended and Restated Stock Option Plan ("Plan"), and
options issued outside of any Plan, as described in the Registration Statement
("Stock Options").
In arriving at this opinion, we have examined the Company's Articles of
Incorporation, its Bylaws, 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, the Stock Options, an opinion of Nevada Counsel,
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
Options has been taken; and that said shares of Common Stock are duly
authorized, and upon delivery of same to the participants under the Stock
Options against payment therefor upon the terms set forth in the Stock Options,
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.
D'ANCONA & PFLAUM LLC
By: /s/ Steve Curtis
------------------------------------
Steve Curtis, Member
<PAGE> 1
EXHIBIT 5.2
OPINION OF NEVADA COUNSEL
January 19, 1999
D'Ancona & Pflaum LLC
111 E. Wacker Drive
Suite 2800
Chicago, Illinois 60601-4205
RE: WATSON PHARMACEUTICALS, INC.
Ladies and Gentlemen:
You have requested our opinion as special Nevada counsel for Watson
Pharmaceuticals, Inc., a Nevada corporation ("Watson"), in connection with the
filing of a Registration Statement on Form S-8 (the "Registration Statement")
relating to up to 621,657 shares (the "Shares") of Watson's common stock, par
value $.0033 ("Watson Common Stock") that may be issued upon the exercise of
options issued under the Theratech, Inc. 1992 Amended and Restated Employees'
Stock Option Plan (the "Plan") as well as stock options issued outside of any
plan. Previously, a subsidiary of Watson merged with Theratech, Inc. pursuant to
an Agreement and Plan of Merger dated October 23, 1998 (the "Merger Agreement").
We are not general counsel to Watson, and we have been retained specially to
represent Watson in this transaction for the purpose of rendering this opinion
to you. Any opinions expressed herein shall be limited to the extent that we
have been retained as special Nevada counsel.
In connection with this opinion, we have examined the following
documents (collectively, the "Documents"):
1. Articles of Incorporation of Watson as filed with the Nevada
Secretary of State on January 2, 1985, as amended on September
28, 1987, as amended on August 27, 1991, as amended on February
20, 1992, as amended on July 18, 1995, and as amended on May 30,
1996.
2. Bylaws of Watson, certified by Watson to be currently in full
force and effect as of December 11, 1998.
3. A mechanically executed copy of the Merger Agreement.
4. Certificate of the Secretary of Watson dated as of November 23,
1998.
5. Draft of the Registration Statement to be filed with the
Securities and Exchange Commission.
In our examination of the Documents, we have assumed the genuineness of
all signatures, the legal capacity of natural persons who signed the Documents,
the authenticity of all Documents submitted to us as originals, the conformity
to the originals of all Documents
<PAGE> 2
submitted to us as copies and the authenticity of the originals of such latter
Documents. We assume the due authorization of each Document by each party
thereto. We assume that the Documents have not been rescinded, modified, or
altered in any manner whatsoever as of the date hereof.
In rendering the following opinions, we have relied without
investigation on the certificates of officers of Watson, and we have not
independently verified any of the factual matters set forth in any other
Documents upon which we have relied. Furthermore, we have been provided with a
copy of the Registration Statement, and we have relied without investigation
upon the representations contained therein. We have not been asked, nor have we
endeavored, to review, revise or in any manner comment upon the contents of the
Registration Statement.
We are admitted to the Bar of the state of Nevada. In rendering our
opinions hereinafter stated, we have relied upon the applicable laws of the
state of Nevada as those laws presently exist and as they have been applied and
interpreted by courts having jurisdiction within the state of Nevada. We express
no opinion as to the laws of any other jurisdiction or of the United States of
America.
Based on such examination and subject to the limitations and assumptions
herein provided, we are of the opinion that Watson has the full power and
authority under the laws of the State of Nevada, and under its Articles of
Incorporation and Bylaws, as amended, to issue the Shares in accordance with the
Merger Agreement and the Plan and that the Shares are validly authorized shares
of Watson Common Stock, and when issued, will be legally issued, fully paid and
nonassessable and not subject to any preemptive or similar rights.
These opinions are effective as of the date hereof. No extensions of our
opinion may be made by implication or otherwise. We express no opinion other
than as herein expressly set forth. We understand that you will rely on our
opinion in rendering your separate opinion addressed to the Securities and
Exchange Commission in connection with the Registration Statement. Our opinions
are not to be otherwise quoted in whole or in part without the express written
consent of this firm.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement, and any and all amendments thereto.
Very truly yours,
/s/ KUMMER KAEMPFER BONNER & RENSHAW
------------------------------------
Kummer Kaempfer Bonner & Renshaw
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Form S-8 of
our report dated February 2, 1998, except as to Note 2, which is as of February
27, 1998 appearing on page F-2 of Watson Pharmaceuticals, Inc.'s Annual Report
on Form 10-K for the year ended December 31, 1997.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PRICEWATERHOUSECOOPERS LLP
Costa Mesa, California
January 18, 1999
<PAGE> 1
EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Watson Pharmaceuticals, Inc. on Form S-8 of our report dated February 4, 1998
relating to the consolidated financial statements of Somerset Pharmaceuticals,
Inc. and subsidiaries as of December 31, 1997 and 1996 and for each of the three
years in the period ended December 31, 1997, appearing in the Annual Report on
Form 10-K/A of Watson Pharmaceuticals, Inc. for the year ended December 31,
1997.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
Deloitte & Touche LLP
Pittsburgh, Pennsylvania
January 18, 1999
<PAGE> 1
EXHIBIT 23.5
CONSENT OF ARTHUR ANDERSEN LLP
As independent public accountants, we hereby consent to the
incorporation by reference in this Registration Statement of our report dated
January 17, 1997 and to all references to our Firm included in this Registration
Statement on Form S-8.
/s/ ARTHUR ANDERSEN LLP
-----------------------
ARTHUR ANDERSEN LLP
January 15, 1999
