<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ____)*
Therapeutic Discovery Corporation
---------------------------------
(Name of Issuer)
Class A Common Stock
------------------------------
(Title of Class of Securities)
883376 10 5
-----------
CUSIP Number
Carol A. Gamble, Esq.
ALZA Corporation
950 Page Mill Road, P.O. Box 10950
Palo Alto, California 94303-0802
(415) 496-8143
With a copy to:
Sarah A. O'Dowd, Esq.
Heller, Ehrman, White & McAuliffe
525 University Avenue
Palo Alto, California 94301
(415) 324-7045
-------------------------------------
(Name, address and telephone number
of person authorized to receive
notices and communications)
June 11, 1993
-----------------------------
(Date of Event which requires
filing of this statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box: [ ]
Check the following box if a fee is being paid with this statement: [X]
(A fee is not required only if the reporting person: (1) has a previous
statement on file reporting beneficial ownership of more than five percent of
the class of securities described in Item 1; and (2) has filed no amendment
subsequent thereto reporting beneficial ownership of five percent or less of
such class. See (Rule 13d-7.)
(Page 1 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
(Page 2 of 27 pages)
<PAGE>
- ----------------------- ---------------------
CUSIP NO. 883376 13D PAGE 3 OF 27 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
ALZA Corporation
I.R.S. Identification No. 77-0142070
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
4 SOURCE OF FUNDS*: 00
- ------------------------------------------------------------------------------
5 [_] CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e)
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
7,733,577 Shares of Class A Common Stock
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
7,733,577 Shares of Class A Common Stock
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
7,733,577 Shares of Class A Common Stock (See Response to Item 3)
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
100.0% (See response to Item 3)
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
CO
- ------------------------------------------------------------------------------
*SEE INSTRUCTION BEFORE FILLING OUT!
(Page 3 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
Item 1. Security and Issuer.
-------------------
This statement relates to shares of Class A Common Stock, $.01 par
value per share (the "Shares") of Therapeutic Discovery Corporation, a Delaware
corporation (the "Issuer"). The address of the principal executive offices of
the Issuer is 1290 Page Mill Road, P.O. Box 10051, Palo Alto, CA 94303-0860.
The reporting person, ALZA Corporation, is filing this Statement on
Schedule 13D because it holds, pursuant to the Issuer's Restated Certificate of
Incorporation (the "Restated Certificate") filed as Exhibit 7.2, an option (the
"Purchase Option") to acquire all of the outstanding Shares on the terms and
subject to the conditions set forth in the Restated Certificate.
Item 2. Identity and Background.
-----------------------
(i) The following information is given with respect to the reporting
person, ALZA Corporation ("ALZA");
State of Organization: Delaware
---------------------
Principal Business: Development of pharmaceutical
------------------
products based on controlled drug delivery technology
Principal Executive Office Address:
----------------------------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, CA 94303-0802
Criminal Convictions During Preceding Five Years:
------------------------------------------------
None
Judgments, Decrees or Orders Under Federal or State Securities
--------------------------------------------------------------
Laws During Preceding Five Years: None
--------------------------------
(ii) The following information is given with respect to the executive
officers and directors of ALZA;
(a) Dr. Alejandro Zaffaroni, Director and Co-Chairman
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, CA 94303-0802
Principal Occupation:
--------------------
Co-Chairman of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: Uruguay
-----------
(Page 4 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
(b) Martin S. Gerstel, Director, Co-Chairman and Chief Executive
Officer
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, CA 94303-0802
Principal Occupation:
--------------------
Co-Chairman and Chief Executive Officer of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(c) William G. Davis, Director
Residence Address:
-----------------
3532 Bay Road, South Drive
Indianapolis, Indiana 46240
Principal Occupation:
--------------------
President (Retired), Medical Instruments Systems
Division, Eli Lilly and Company, a pharmaceutical
company
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(d) Robert J. Glaser, M.D., Director
Business Address:
----------------
525 Middlefield Road, #130
Menlo Park, California 94025
Principal Occupation:
--------------------
Director for Medical Science and Trustee, Lucille P.
Markey Charitable Trust
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(Page 5 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
(e) Dean O. Morton, Director
Business Address:
----------------
3000 Hanover
Mail Stop 20BX
Palo Alto, California 94304
Principal Occupation:
--------------------
Executive Vice President and Chief Operating Officer
(Retired), Hewlett-Packard Corporation, an electronics
company
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(f) Rudolf A. Peterson, Director
Business Address:
----------------
Bank of America, N.T. & S.A.
555 California Street, Suite 500
San Francisco, California 94104
Principal Occupation:
--------------------
President (Retired) Bank of America, N.T. & S.A.;
Administrator (Retired) United Nations Development
Programme
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(g) Dr. Jane E. Shaw, Director, President and Chief Operating
Officer
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
President and Chief Operating Officer of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United Kingdom
-----------
(Page 6 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
(h) Isaac Stein, Director
Business Address:
----------------
525 University Avenue, Suite 415
Palo Alto, California 94301-1908
Principal Occupation:
--------------------
President, Waverley Associates, Inc., a private
investment company
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(i) Julian N. Stern, Director and Secretary
Business Address:
----------------
525 University Avenue, Suite 1100
Palo Alto, California 94301-1908
Principal Occupation:
--------------------
Partner, Heller, Ehrman, White & McAuliffe, a law firm
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(j) Dr. Felix Theeuwes, Executive Vice President, Research and
Development and Chief Scientist
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Senior Vice President, Research and Development and
Chief Scientist of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: Belgium
-----------
(Page 7 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
(k) Dr. Gary V. Fulscher, Vice President, Administration
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Vice President, Administration of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(l) Adrian M. Gerber, Executive Vice President
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Executive Vice President of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(m) David R. Hoffmann, Vice President, Finance and Treasurer
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Vice President, Finance and Treasurer of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(Page 8 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
(n) Gary S. Lyman, Vice President, Manufacturing Business
--------
Address:
-------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Vice President, Manufacturing of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
(o) Edward L. Mandell, Vice President, Legal
Business Address:
----------------
950 Page Mill Road
P.O. Box 10950
Palo Alto, California 94303-0802
Principal Occupation:
--------------------
Vice President, Legal of ALZA
Criminal Convictions During Preceding Five Years: None
------------------------------------------------
Judgments, Decrees or Orders Under Federal or State
---------------------------------------------------
Securities Laws During Preceding Five Years: None
-------------------------------------------
Citizenship: United States
-----------
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
The Purchase Option was granted to ALZA pursuant to, and is set forth
in, the Restated Certificate. The Shares were issued by the Issuer to ALZA and
distributed by ALZA, subject to the Purchase Option, on June 11, 1993 as a
dividend to holders of record of ALZA's Common Stock on May 28, 1993 (the
"Distribution"). Prior to the Distribution, ALZA made a capital contribution
(from its own funds) to TDC of $250 million. The terms of the Distribution and
Purchase Option are set forth in ALZA's Information Statement dated March 10,
1993 and filed as Exhibit 7.1. Each holder of Shares acquired such Shares
subject to the terms of the Purchase Option.
Item 4. Purpose of Transaction.
----------------------
ALZA's present plans with respect to the Issuer have been outlined in
the Information Statement filed as Exhibit 7.1. Except as described in the
Information Statement, ALZA and, to the best knowledge of ALZA, the directors
and officers of ALZA, have no present plans or proposals which relate to or
would result in any of the actions specified in clauses (a) through (j) of Item
4 of Schedule 13D; however, ALZA reserves the right to develop such plans or
proposals.
(Page 9 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
Item 5. Interest in Securities of the Issuer.
------------------------------------
Pursuant to the Purchase Option, ALZA has the right to acquire
7,733,577 Shares, constituting 100% of the issued and outstanding shares of
capital stock of the Issuer held by persons other than ALZA. If the Purchase
Option is exercised, ALZA will have the sole power to vote and to dispose or
direct the disposition of the Shares beneficially owned by it. ALZA is the
holder of 100 shares of Class B Common Stock of the Issuer (representing 100% of
such class), which shares are not publicly traded. Other than the Distribution
itself, there have been no transactions in the Shares by ALZA during the past 60
days.
The following are the only executive officers and directors of ALZA
known to ALZA to beneficially own Shares:
<TABLE>
<CAPTION>
Name Number of Shares Nature of Ownership
- ------------------------- -------------------- -------------------------------
<S> <C> <C>
William G. Davis 200 sole voting, sole disposition
Dr. Gary V. Fulscher 9,182(1) sole voting, sole disposition
Martin S. Gerstel 17,321(1)(2) sole voting, sole disposition
Dr. Robert J. Glaser 1,088 sole voting, sole disposition
David R. Hoffmann 3,344(1) sole voting, sole disposition
Gary S. Lyman 2,793(1) sole voting, sole disposition
Edward L. Mandell 9,562(1) sole voting, sole disposition
Dean O. Morton 1,000(1) sole voting, sole disposition
Rudolph A. Peterson 2,359 sole voting, sole disposition
Dr. Jane E. Shaw 14,522(1)(3) sole voting, sole disposition
Isaac Stein 1,160 sole voting, sole disposition
Julian N. Stern 9,393(4) sole voting, sole disposition
Dr. Felix Theeuwes 17,476(1)(5) sole voting, sole disposition
Dr. Alejandro Zaffaroni 95,594(6) shared voting, shared
disposition
</TABLE>
______________________________________
(1) Includes shares held by an employee benefit plan trust.
(2) Excludes 1,090 shares held as trustee for benefit of an unrelated person.
(3) Excludes 395 share held in trust for the benefit of a family member and
3,803 shares held by Ms. Shaw's spouse.
(4) Excludes 621 shares held as trustee for the benefit of an unrelated party.
(5) Excludes 80 shares held by a family member.
(6) Includes 4,906 shares held by a partnership in which Dr. Zaffaroni has an
interest.
To the best knowledge of ALZA, all of the above persons acquired Shares in the
Distribution, and there have been no transactions in the Shares by the above
persons during the past 60 days.
(Page 10 of 27 pages)
<PAGE>
CUSIP No. 883376 10 5 13D
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
For a description of the Purchase Option see the Information
Statement.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 7.1 Information Statement of ALZA Corporation
regarding Therapeutic Discovery
Corporation dated March 10, 1993
(incorporated by reference to Exhibit 4 to
ALZA Corporation's Form 8-A Registration
filed on April 2, 1993).
Exhibit 7.2 Restated Certificate of Incorporation of
Therapeutic Discovery Corporation.
(Page 11 of 27 pages)
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
/s/ Martin S. Gerstel
____________________________________________
Martin S. Gerstel
Co-Chairman and
Chief Executive Officer
Date: June 17, 1993
(Page 12 of 27 pages)
<PAGE>
EXHIBIT 7.2
RESTATED CERTIFICATE OF INCORPORATION
OF
THERAPEUTIC DISCOVERY CORPORATION
(Originally incorporated on November 12, 1992)
FIRST: Name. The name of this corporation is Therapeutic Discovery
----
Corporation (the "corporation").
SECOND: Registered Office; Registered Agent. The address of the
-----------------------------------
registered office of this corporation in the State of Delaware is 1013 Centre
Road, in the City of Wilmington, County of New Castle. The name of the
registered agent of this corporation at such address is Corporation Service
Company.
THIRD: Purpose. The purpose of this corporation is to engage in
-------
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware.
FOURTH: Authorized Capital Stock.
------------------------
(A) This corporation is authorized to issue two classes of shares,
which shall be known as Class A Common Stock and Class B Common Stock. The total
number of shares of stock of all classes that this corporation is authorized to
issue is 12,000,100. The total number of shares of Class A Common Stock which
this corporation is authorized to issue is 12,000,000. The total number of
shares of Class B Common Stock which this corporation is authorized to issue is
100. Each share of Class A Common Stock and Class B Common Stock shall have a
par value of $0.01.
Effective immediately upon the filing of this Restated Certificate of
Incorporation, each share of Common Stock, par value $1.00 per share, of this
corporation outstanding immediately prior to such filing shall be converted into
and reclassified as one share of Class B Common Stock.
(B) The powers, designations, preferences, and relative,
participating, optional or other special rights granted to, and the
qualifications, limitations and restrictions imposed upon, the Class A Common
Stock and Class B Common Stock and the respective holders thereof are as
follows:
(1) Redemption. The shares of Class A Common Stock are redeemable
----------
and may be redeemed as provided in (but only as provided in) ARTICLE FIFTH,
Section (F).
(2) Dividends. The holders of shares of Class A Common Stock and
---------
Class B Common Stock shall be entitled to receive per share and without
preference such dividends as may be declared by the Board of Directors from
time to time
<PAGE>
out of funds legally available therefor. No dividend may be declared on the
Class A Common Stock unless the same per share dividend is declared on the
Class B Common Stock, and no dividend may be declared on the Class B Common
Stock unless the same per share dividend is declared on the Class A Common
Stock. Dividends may not be declared, nor may shares of Class A Common
Stock or Class B Common Stock be repurchased or redeemed (other than
pursuant to Section (F) of Article FIFTH) if, after payment of such
dividend, or after effecting such repurchase or redemption, the amount of
this corporation's cash, cash equivalents, short and long term investments
would be less than the amount of Available Funds as of the date of such
dividend, repurchase or redemption.
(3) Liquidation. In the event of voluntary or involuntary liquidation
-----------
of this corporation, the holders of the Class A Common Stock and Class B
Common Stock of the corporation shall be entitled to receive, on a pro rata
per share basis and without preference, all of the remaining assets of this
corporation available for distribution to its stockholders.
(4) Voting Rights. Except as otherwise required by law or provided
-------------
herein, the holders of Class A Common Stock and Class B Common Stock shall
vote together as a single class. Each holder of Class A Common Stock and
Class B Common Stock shall have one vote for each share standing in his or
her name on all matters submitted to a vote of holders of the common
shares. At any meeting of the stockholders of this corporation, the
determination of a quorum shall be based upon the presence of shares of
Class A Common Stock and Class B Common Stock representing a majority of
the voting power of all of the shares of Class A Common Stock and Class B
Common Stock. This corporation shall not, without the affirmative vote of
the holders of a majority of the issued and outstanding shares of Class B
Common Stock, voting separately and as a class, (a) alter or change the
powers, designations, preferences and relative, participating, optional or
other special rights granted to, or the qualifications, limitations and
restrictions imposed upon, the Class A Common Stock or the Class B Common
Stock, (b) alter or change Articles FOURTH, FIFTH, SIXTH, SEVENTH or EIGHTH
of this Restated Certificate of Incorporation, (c) authorize the creation
or issuance of any additional class or series of stock, or otherwise make
any amendment to this Certificate of Incorporation that would alter the
rights of the holders of the Class B Common Stock, (d) undertake the
voluntary dissolution, liquidation or winding up of this corporation, (e)
merge or consolidate this corporation with or into any other corporation or
entity, (f) sell, lease, exchange, transfer or otherwise dispose of any
substantial asset of this corporation or (g) alter the bylaws of this
corporation in a manner
-2-
<PAGE>
described in the last sentence of ARTICLE EIGHTH. Furthermore, from and
after the Purchase Option Exercise Date, as defined in Article FIFTH, (i)
the board of directors of this corporation shall cease to be classified;
(ii) the number of directors of this corporation shall be increased to a
number equal to (a) two times the maximum number of authorized directors
(counting for this purpose both directors in office and vacant
directorships), plus (b) one; and (iii) the holders of the Class B
----
Common Stock shall have the sole right to elect the directors of this
corporation, including directors to fill the new directorships created
pursuant to clause (ii). No vacancy created as a result of the increase in
the size of the board of directors pursuant to the preceding sentence shall
be filled other than by the holders of the Class B Common Stock.
(5) Conversion. The Class B Common Stock shall automatically convert
----------
into fully paid and non-assessable shares of Class A Common Stock of this
corporation at 12:01 a.m. New York time on the day immediately following
the expiration of the Purchase Option granted in Article FIFTH. The Class B
Common Stock shall convert into Class A Common Stock at the rate of one
share of Class A Common Stock for each share of Class B Common Stock.
(6) Transfer of Class A Common Stock. Until the first to occur of (i)
--------------------------------
the third anniversary of the date (the "Distribution Date") upon which
certificates representing Units comprised in part of shares of Class A
Common Stock are distributed by ALZA Corporation (together with its
successors and assigns, "ALZA") to the holders of ALZA's Class A Common
Stock or (ii) the Purchase Option Exercise Date, the Class A Common Stock
may be transferred only as part of Units. Each "Unit" consists of one share
of Class A Common Stock and one warrant to acquire one-eighth of one share
of ALZA Common Stock.
FIFTH. Purchase Option.
---------------
(A) Definitions. For purpose of this Restated Certificate of
-----------
Incorporation, the following terms shall have the following definitions:
(1) ALZA Common Stock means the Class A Common Stock of ALZA or, if
-----------------
such Class A Common Stock is converted into or exchanged for another class or
series of stock of ALZA or any other corporation, such other class or series of
stock.
(2) Available Funds means, as of any date of determination, the sum
---------------
of (a) $250 million (contributed by ALZA in or about March 1993), plus (b)
----
interest and other income earned through investment of such funds until their
expenditure pursuant to the Development Contract through the date of
-3-
<PAGE>
determination, less (c) reasonable ongoing administrative expenses of this
----
corporation, including legal and accounting expenses, incurred through the date
of determination, less (d) the costs associated with the distribution to ALZA's
----
stockholders of the Units.
(3) Development Contract means the Development Agreement dated as of
--------------------
March 10, 1993 between ALZA and this corporation, as such contract may be
amended or modified from time to time by amendments approved by ALZA and the
board of directors of this corporation.
(4) Fair Market Value means, with reference to ALZA Common Stock, (a)
-----------------
if ALZA Common Stock is listed on the New York Stock Exchange or any other
securities reporting closing sales prices (including without limitation the
NASDAQ National Market System), the average of the closing sales price of ALZA
Common Stock on such exchange (which shall be the New York Stock Exchange or, if
ALZA Common Stock is not then traded on such exchange, on the principal exchange
on which ALZA Common Stock is then traded), for the five trading days ending
with the trading day that is two trading days prior to the date of
determination, (b) if ALZA Common Stock is not listed on any securities exchange
described in clause (a) but is quoted on NASDAQ or another quotation system
providing bid prices, the average (over the five day period described in clause
(a)) of the bid prices for each day in such period on NASDAQ (or, if ALZA Common
Stock is not then quoted on NASDAQ, the largest quotation system on which ALZA
Common Stock is then quoted), and (c) if ALZA Common Stock is not listed on any
exchange or quoted on any quotation system, the value thereof as determined in
good faith by ALZA's board of directors.
(5) Final Purchase Option Exercise Price means the Purchase Option
------------------------------------
Exercise Price minus (a) the amount by which this corporation's Liabilities
-----
existing at the Purchase Option Exercise Date (other than liabilities pursuant
to the Development Contract) exceed the aggregate of this corporation's then
existing cash, cash equivalents and short-term and long-term investments (but
excluding from such cash, cash equivalents and short-term and long-term
investments the amount of Available Funds determined as of the Purchase Option
Exercise Date which had not, as of such date, been paid by this corporation in
accordance with the Development Contract); and minus (b), if the Purchase Option
-----
Exercise Price was determined based upon the provisions of clause (c) of
Section (A)(10) of this Article FIFTH, any additional amounts paid by this
corporation pursuant to the Development Contract from the date of the last
report of such expenditures provided by this corporation to ALZA pursuant to the
Development Contract to the Purchase Option Exercise Date.
(6) Liabilities means, with respect to this corporation, (a) all
-----------
liabilities required to be reflected or
-4-
<PAGE>
reserved against in this corporation's financial statements under generally
accepted accounting principles consistently applied ("GAAP"), (b) any guaranty
of any indebtedness of another person and (c) any reimbursement or similar
obligation with respect to any letter of credit issued for the account of this
corporation or as to which this corporation is otherwise liable. Liabilities of
the type described in (b) and (c) shall be valued at the full amount of the
potential liability of the corporation thereon.
(7) License Agreement means any License Agreement between ALZA and
-----------------
this corporation entered into upon the exercise by ALZA of the license option
granted to it pursuant to the License Option Agreement.
(8) License Option Agreement means the License Option Agreement
------------------------
between ALZA and this corporation dated as of March 10, 1993, as such agreement
may be amended or modified from time to time by amendments approved by ALZA and
the board of directors of this corporation.
(9) Purchase Option Exercise Date means the date upon which ALZA
-----------------------------
notifies this corporation in writing of its exercise of the Purchase option as
provided in Section (C) of this Article FIFTH.
(10) Purchase Option Exercise Price means the greatest of the
------------------------------
following:
(a) the greater of (i) 25 times the Royalties paid by or due from
ALZA to this corporation, plus 25 times any Royalties that would have been
----
paid by or due from ALZA to this corporation if ALZA had not exercised its
right to buy out its obligation to pay any such Royalties as provided in
Section 7.5 of the Development contract or Section 3.4 of any License
Agreement, in each case determined with reference to the most recent four
complete calendar quarters preceding the Purchase Option Exercise Date for
which such Royalties were paid by or due from ALZA or would have been paid
by or due from ALZA, or (ii) 100 times such Royalties paid by or due from
ALZA to this corporation during the most recent complete calender quarter
for which such Royalties were paid or due; provided, that in the case of
--------
either (i) or (ii) the amount so determined shall be reduced by any amounts
previously paid by ALZA to this corporation to buy out any obligation to
pay Royalties as provided in the Development Contract or any License
Agreement;
(b) the Fair Market Value of one million shares of ALZA Common Stock
(which number of shares shall be proportionately adjusted for any stock
dividend, split-up, combination or reclassification of the ALZA Common
Stock) determined as of the Purchase Option Exercise Date;
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(c) $325 million less the total amount paid by this corporation under
----
the Development Contract as last reported by this corporation to ALZA
through the Purchase Option Exercise Date; and
(d) $100 million.
(11) Purchase Option Expiration Time means 11.59 p.m. New York time on
-------------------------------
December 31, 1999; provided that such date will be extended for successive one
year periods if, as of any June 30 beginning with June 30, 1999, this
corporation has not paid at least 90% of all Available Funds pursuant to the
Development Contract. Notwithstanding the foregoing sentence, the Purchase
Option Expiration Time will in no event occur later than 11.59 p.m. New York
time on the 60th day after the later of (a) the date of filing with the
Securities and Exchange Commission or (b) the due date of this corporation's
Annual Report on Form 10-K or Quarterly Report on Form 10-Q containing a balance
sheet showing that this corporation has less than an aggregate of $5 million in
cash, cash equivalents, and short-term and long-term investments.
(12) Royalties means (a) royalties paid or other payments made by
---------
ALZA to this corporation under a License Agreement in respect of any product
licensed by ALZA from this corporation pursuant to the License Option Agreement
and (b) payments made by ALZA under Section 7.4 of the Development Contract. In
determining the amount of Royalties for purposes of Article FIFTH, Section (A)
(10) (a), all Special Royalty Payments are to be amortized equally over a period
of 28 calendar quarters beginning with the calendar quarter in which such
Special Royalty Payment is made, regardless of the treatment of such Special
Royalty Payments in determining Royalties actually paid under any License
Agreement or the Development Contract.
(13) Special Royalty Payment means front-end distribution fees,
-----------------------
prepaid royalties and similar one-time, infrequent or special payments.
(14) Status Statement means, as of any date, a balance sheet dated as
----------------
of such date, together with (a) a statement and brief description of all other
liabilities of this corporation constituting Total Liabilities as of such date
not reflected on such balance sheet, (b) a statement of the amount of Available
Funds remaining as of such date, and (c) a statement of the total amounts paid
by this corporation pursuant to the Development Contract through such date.
(15) Total Liabilities means, with respect to this corporation, (a)
-----------------
all Liabilities and (b) any other debts, liabilities or obligations, absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or
unaccrued, known or unknown, whenever arising, including all costs and expenses
relating thereto, and including those debts, liabilities
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and obligations arising under law, rule or regulation, or under any pending or
threatened action, suit or proceeding, or any order or consent decree of any
governmental entity or any award or any arbitrator of any kind, and those
arising under any contract, commitment or undertaking.
(B) Grant of Option. ALZA is hereby granted an exclusive irrevocable
---------------
purchase option to purchase all issued and outstanding shares of Class A Common
Stock of this corporation for the Final Purchase Option Exercise Price (the
"Purchase Option"). The Purchase Option, if exercised, must be exercised as to
all, but not less then all, issued and outstanding shares of Class A Common
Stock and may be exercised at any time at or prior to the Purchase Option
Expiration Time. ALZA shall elect, at the time of exercise of the Purchase
Option, to pay all or any portion of the Final Purchase Option Exercise Price in
cash, ALZA Common Stock (valued at its Fair Market Value determined as of the
Purchase Option Exercise Date), or any combination thereof. The Purchase Option
may, at ALZA's option, be assigned or otherwise transferred to any person or
entity, including this corporation.
(C) Manner of Exercise. The Purchase Option shall be exercised at or
------------------
before the Purchase Option Expiration Time by written notice (the "Exercise
Notice") from ALZA to this corporation stating that the Purchase Option is
being exercised and setting forth (1) the Purchase Option Exercise Price; (2)
the portion, if any, of the Purchase Option Exercise Price to be paid in cash
and the portion, if any, of the Purchase Option Exercise Price to be paid in
ALZA Common Stock, and if any portion of the Purchase Option Exercise Price is
to be paid in ALZA Common Stock, stating the Fair Market Value of such ALZA
Common Stock determined as of the Purchase Option Exercise Date, and (3) a
closing date (the "Closing Date") on which all of the issued and outstanding
shares of Class A Common Stock will be purchased. The Purchase Option shall be
deemed to be exercised as of the date of mailing by first class mail of the
Exercise Notice to this corporation.
(D) Closing.
-------
(1) Closing Date; Corporation. Except as set forth below, the Closing
-------------------------
Date shall be the date specified as such in the Exercise Notice, which date
specified shall be no later than 90 days after the Purchase Option Exercise
Date. The Closing Date may be extended by ALZA if, the judgment of ALZA, an
extension of the Closing Date is necessary to obtain any governmental or third
party consent to the purchase of the Class A Common Stock, to permit any
necessary registration statement or similar filing to be declared effective, or
to permit the expiration prior to the Closing Date of any statutory or
regulatory waiting period. ALZA may extend the Closing Date for the reasons set
forth in the preceding sentence by delivering written notice of such extension
to this corporation on or prior
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to the previously scheduled Closing Date. This corporation shall cooperate with
ALZA to effect the closing of the Purchase Option, including without limitation
seeking any required third-party or governmental consents, and filing any
applications, notifications, registration statements or the like which may be
necessary to effect the closing.
(2) Certain Restrictions Following Purchase Option Exercise Date.
------------------------------------------------------------
From the Purchase Option Exercise Date until the Closing Date, this corporation
will not take any of the following actions (or permit any such actions to be
taken on its behalf) except with the prior written consent of ALZA:
(a) borrow money, or mortgage, remortgage, pledge, hypothecate or
otherwise encumber any of its assets;
(b) sell, lease, lend, exchange or otherwise dispose of any of its
assets, other than sales of inventory in the ordinary course of business;
(c) pay or declare any dividends or make any distributions on or in
respect of any shares of its capital stock;
(d) default in its obligations under any material contract,
agreement, commitment or undertaking of any kind or enter into any material
contract, agreement, purchase order or other commitment; or
(e) enter into any other transaction or agreement or arrangement, or
incur any liabilities, not in the ordinary course of this corporation's
business.
(3) Determination of Final Purchase Option Exercise Price. Not later
-----------------------------------------------------
than 15 business days following the Purchase Option Exercise Date, this
corporation shall deliver a final Status Statement to ALZA prepared as of the
Purchase Option Exercise Date. Following receipt of such Status Statement and
completion of any other investigation as ALZA shall deem necessary or
appropriate, and prior to the Closing Date, ALZA shall determine the Final
Purchase Option Exercise Price by making the adjustments to the Purchase Option
Exercise Price contemplated by Section (A)(5) of this Article FIFTH and shall
notify this corporation of such determination.
(4) Payment of Final Purchase Option Exercise Price. On or before the
-----------------------------------------------
Closing Date, ALZA shall deposit the full amount of the Final Purchase Option
Exercise Price with a bank or banks or similar entities designated by ALZA
(which may include ALZA's transfer agent if shares of ALZA Common Stock are
being delivered) to pay, on ALZA's behalf, the Final Purchase Option Exercise
Price (the "Payment Agent"). Funds, if any, and ALZA Common Stock, if any,
deposited with the Payment Agent shall be delivered in trust for the benefit of
the holders of Class A
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<PAGE>
Common Stock, and ALZA shall provide the Payment Agent with irrevocable
instructions to pay, on or after the Closing Date, the Final Purchase Option
Exercise Price for the shares of Class A Common Stock to the holders of record
thereof determined as of the Closing Date. Payment for shares of Class A Common
Stock shall be mailed to each holder at the address set forth in this
corporation's records or at the address provided by each holder or, if no
address is set forth in this corporation's records for a holder or provided by
such holder, to such holder at the address of this corporation. At ALZA's
request, this corporation shall provide, or shall cause its transfer agent to
provide, to ALZA or to the Payment Agent, free of charge, a complete list of the
record holders of shares of Class A Common Stock, including the number of shares
of Class A Common Stock held of record and the address of each record holder.
(E) Transfer of Title. Transfer of title to all of the issued and
-----------------
outstanding shares of Class A Common Stock shall be deemed to occur
automatically on the Closing Date and thereafter this corporation shall be
entitled to treat ALZA as the sole holder of all of the issued and outstanding
shares of its Class A Common Stock, notwithstanding the failure of any holder of
Class A Common Stock to tender the certificates representing such shares to the
Payment Agent. This corporation shall instruct its transfer agent not to accept
any shares of Class A Common Stock for transfer on and after the Closing Date,
except for the shares of Class A Common Stock transferred to ALZA. This
corporation shall take all actions reasonably requested by ALZA to assist in
effectuating the transfer of shares of Class A Common Stock in accordance with
this Article FIFTH.
(F) Redemption of Class A Common Stock. At ALZA's election (which
----------------------------------
election may be made at any time, provided it is made, by delivery of written
notice thereof to this corporation, not less than five days prior to the Closing
Date), this corporation shall, subject to applicable restrictions in the
Delaware General Corporation Law, redeem on the Closing Date all issued and
outstanding shares of Class A Common Stock for an aggregate redemption price
equal to the Final Purchase Option Exercise Price.
SIXTH. Protective Provisions.
---------------------
(A) Legend. Certificates evidencing shares of Class A Common Stock
------
issued by or on behalf of this corporation shall bear a legend in substantially
the following form:
"The shares of Therapeutic Discovery Corporation evidenced hereby are
subject to an option in favor of ALZA Corporation, its successors and assigns,
as described in the Restated Certificate of Incorporation of Therapeutic
Discovery Corporation to purchase such shares at a purchase price determined in
accordance with Article FIFTH thereof exercisable
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<PAGE>
by notice delivered to this Corporation at or prior to the Purchase Option
Expiration Time (as defined in the Restated Certificate of Incorporation of
Therapeutic Discovery Corporation). Copies of the Restated Certificate of
Incorporation of Therapeutic Discovery Corporation are available at the
principal place of business of Therapeutic Discovery Corporation at 1290 Page
Mill Road, P. O. Box 10950, Palo Alto, California 94303-0860 and will be
furnished to any stockholder on request and without cost."
(B) No Conflicting Action. This corporation shall not take, nor
---------------------
permit any other person or entity within its control to take, any action
inconsistent with ALZA's rights under Article FIFTH. This corporation shall not
enter into any arrangement, agreement or understanding, whether oral or in
writing, that is inconsistent with or limits or impairs the rights of ALZA and
the obligations of this corporation hereunder, including without limitation any
arrangement, agreement or understanding which imposes any obligation upon this
corporation, or deprives this corporation of any material rights, as a
consequence of the exercise of the Purchase Option or the acquisition of the
outstanding Class A Common Stock pursuant thereto.
(C) Inspection and Visitation Rights; Status Statements. ALZA shall
---------------------------------------------------
have the right to inspect and copy, on reasonable notice and during regular
business hours, the books and records of this corporation. ALZA shall also have
the right to request from time to time (but not more frequently than monthly) a
Status Statement as of such date as ALZA may request. Each Status Statement
shall be sent within seven days of request by ALZA. ALZA shall also have the
right to send a non-voting representative to attend all meetings of this
corporation's board of directors and any committees thereof. Such
representative shall receive notice of all meetings of this corporation's board
of directors and each committee thereof, as well as copies of all documents and
other materials provided to any directors of this corporation in connection
with any such meeting not later than the time such materials are provided to
other directors. Such representative shall also be provided with copies of all
resolutions adopted or proposed to be adopted by unanimous written consent not
later than the time such resolutions are provided to other directors.
SEVENTH: Board of Directors.
------------------
(A) The number of directors which shall constitute the whole Board of
Directors of this corporation shall initially be three, but may be increased or
decreased from time to time by a resolution duly adopted by the Board of
Directors.
(B) Nomination of candidates for election to the Board of Directors
shall be made as provided in the bylaws of this corporation. Election of
directors need not be by written ballot.
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(C) The Board of Directors shall be and is divided into three
classes: Class I, Class II and Class III, which shall be as nearly equal in
number as possible. Each director shall serve for a term ending on the date of
the third annual meeting of stockholders following the annual meeting at which
the director was elected; provided, however, that each initial director in Class
I shall hold office until the annual meeting of stockholders in 1994; each
initial director in Class II shall hold office until the annual meeting of
stockholders in 1995; and each initial director in Class III shall hold office
until the annual meeting of stockholders in 1996. Notwithstanding the foregoing
provisions of this Article, each director shall serve until his successor is
duly elected and qualified or until his death, resignation or removal.
(D) In the event of any increase or decrease in the authorized number
of directors, the newly created or eliminated directorships resulting from such
increase or decrease shall be apportioned by the Board of Directors among the
three classes of directors so as to maintain such classes as nearly equal as
possible. No decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(E) Except as otherwise provided in Article FOURTH, Section (B)(4),
newly created directorships resulting from any increase in the number of
directors and any vacancies on the Board of Directors resulting from death,
resignation, disqualification, removal or other cause shall be filled by the
affirmative vote of a majority of the remaining directors then in office (and
not by stockholders), even though less than a quorum of the Board of Directors.
Any director elected in accordance with the preceding sentence shall hold office
for the remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified.
(F) The name and mailing address of each person who is to serve as a
director until the annual meeting of the stockholders entitled to vote for the
class or until a successor is elected and qualified are as follows:
NAME MAILING ADDRESS CLASS
Dr. Pieter P. Bonsen 950 Page Mill Road, I
Palo Alto, CA 94303
Adrian M. Gerber 950 Page Mill Road, II
Palo Alto, CA 94303
Dr. Felix Theeuwes 950 Page Mill Road, III
Palo Alto, Ca 94303
(G) The board of directors of this corporation shall cease to be
classified as provided in this Article SEVENTH from
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<PAGE>
and after the Purchase Option Exercise Date. From and after such date all
directors shall be elected to one year terms; provided the term of any director
then in office shall not be reduced.
EIGHTH: Bylaws. In furtherance and not in limitation of the
------
powers conferred by statute, and subject to the next sentence, the Board of
Directors and the stockholders of this corporation are each expressly authorized
to adopt, amend or repeal the bylaws of this corporation subject to any
particular provisions concerning amendments set forth in this Certificate of
Incorporation or the bylaws of this corporation. No amendment to the bylaws may
be adopted by the stockholders without the approval of holders of a majority of
the Class B Common Stock voting separately as a class if such amendment would
affect the classification of the Board of Directors, or would otherwise regulate
the conduct of the Board's affairs or the manner in which it may act.
NINTH: Stockholder Meetings.
--------------------
(A) Special Meetings. Special meetings of the stockholders for any
----------------
purpose or purposes whatsoever may be called at any time only by the Board of
Directors, the Chairman of the Board or the President of this corporation.
(B) No Action Without Meeting. At any time when this corporation has
-------------------------
more than one stockholder of any class of capital stock, no action required to
be taken or which may be taken at any annual or special meeting of the
stockholders may be taken without a meeting, and the power of stockholders to
consent in writing, without a meeting, to the taking of any action is
specifically denied. Notwithstanding the foregoing, the holder or holders of the
Class B Common Stock may take any action permitted to be taken by such holders
as a class by written consent without a meeting.
TENTH: Limitation of Liability and Indemnification of Directors.
--------------------------------------------------------
(A) Elimination of Certain Liability of Directors. No director or
---------------------------------------------
this corporation shall be personally liable to this corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to
this corporation or its stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) under section 174 of the Delaware General Corporation Law or (iv) for any
transaction from which the director derived an improper, personal benefit.
(B) Indemnification and Insurance.
-----------------------------
1. Right to Indemnification. Each person who was or is made a party
------------------------
or is threatened to be made a party to or is
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involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding"), because he or she, or a person
of whom he or she is the legal representative, is or was a director or officer
of this corporation or is or was serving at the request of this corporation as a
direction, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise (including service with
respect to employee benefit plans), whether the basis of the proceeding is
alleged action in an official capacity as a director, officer, employee or agent
or in any other capacity while serving as a director, officer, employee or
agent, shall be indemnified and held harmless by this corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same exists or
may hereafter be amended (but, in the case of any such amendment, only to the
extent that such amendment permits this corporation to provide broader
indemnification rights than that law permitted this corporation to provide
before such amendment), against all expense, liability and loss (including
attorney's fees, judgments, penalties, fines, Employee Retirement Income
Security Act of 1974 excise taxes or penalties, and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith; provided, however, that this corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if the proceeding (or part thereof) was authorized
by the Board of Directors of this corporation. Such indemnification shall
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of his or her heirs, executors and
administrators. The right to indemnification conferred by this Section shall be
a contract right which may not be retroactively amended and shall include the
right to be paid by this corporation the expenses incurred in defending any such
proceeding in advance of its final disposition; provided, however, that, if the
Delaware General Corporation Law requires the payment of such expenses incurred
by a director or officer in his or her capacity as a director or officer (and
not in any other capacity in which service was or is rendered by such person
while a director or officer, including, without limitation, service with respect
to an employee benefit plan) in advance of the final disposition of the
proceeding, such payment shall be made only upon delivery to this corporation of
an undertaking, by or on behalf of such director or officer, to repay all
amounts so advanced if ultimately it shall be determined that such director or
officer is not entitled to be indemnified under this section or otherwise. This
corporation may, by action of its Board of Directors, provide indemnification to
employees and agents of this corporation with the same scope and effect as the
indemnification of directors and officer
2. Nonexclusivity of Rights. The right to indemnification and the
------------------------
payment of expenses incurred in defending a proceeding in advance of its final
disposition conferred in this Section shall not be exclusive of any other right
which any
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person may have or hereafter acquire under any statute, provision of this
Certificate of Incorporation, bylaw, agreement, vote of stockholders or
disinterested directors, or otherwise.
3. Insurance. This corporation may maintain insurance, at its
---------
expense, to protect itself and any director, officer, employee or agent of this
corporation or another corporation, partnership, joint venture, trust or other
enterprise against any such expenses, liability or loss, whether or not this
corporation would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
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IN WITNESS WHEREOF, the undersigned officers have executed this
Restated Certificate of Incorporation on March 30, 1993 and do hereby certify
--
that this Restated Certificate of Incorporation, which restates and integrates,
and also further amends, the provisions of this Corporation's Certificate of
Incorporation, was duly adopted by the stockholders of this Corporation in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
THERAPEUTIC DISCOVERY CORPORATION
BY: /s/ Pieter P. Bonsen
--------------------------------
Dr. Pieter P. Bonsen,
President, Therapeutic Discovery
Corporation
ATTEST:
/s/ Mary M. Roensch
- --------------------------
Mary M. Roensch, Secretary,
Therapeutic Discovery Corporation
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