1
As filed with the Securities and Exchange Commission on July 16, 2001
Registration No. 333-_______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ALLERGAN, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 95-1622442
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
----------------------
2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 246-4500
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
----------------------
ALLERGAN, INC.
2001 PREMIUM PRICED STOCK OPTION PLAN
(Full title of program)
----------------------
DOUGLAS S. INGRAM
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
ALLERGAN, INC.
2525 DUPONT DRIVE
IRVINE, CALIFORNIA 92612
(714) 246-4500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------
CALCULATION OF REGISTRATION FEE
============================= ================ ====== ============ ==========
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE PRICE PER OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) SHARE(2) PRICE (2) FEE
----------------------------- ---------------- ------ ------------ ----------
COMMON STOCK,
PAR VALUE $.01 PER SHARE 2,400,000 SHARES $77.69 $186,456,000 $46,614.00
============================= ================ ====== ============ ==========
(1) Each share of Common Stock includes a right to purchase one one-hundredth
of a share of Allergan's Series A Junior Participating Preferred Stock, par
value $.01 per share, pursuant to the Rights Agreement dated January 25,
2000 between Allergan, Inc. and EquiServe, N.A., as Rights Agent. Pursuant
to Rule 416(a) under the Securities Act of 1933, this Registration
Statement also covers shares issued pursuant to antidilution provisions set
forth in the Allergan, Inc. 2001 Premium Priced Stock Option Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933 and
based upon the average of the high and low sale prices of the Common Stock
of Allergan as reported on the New York Stock Exchange on July 12, 2001.
================================================================================
2
INTRODUCTION
This Registration Statement on Form S-8 is filed by Allergan, Inc., a
Delaware corporation (the "Company"), and relates to 2,400,000 shares of the
Company's Common Stock, par value $.01 per share (the "Common Stock"), that the
Company may issue under the Allergan, Inc. 2001 Premium Priced Stock Option Plan
(the "Plan").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I of Form S-8 to be contained in the
Section 10(a) prospectus is omitted from this registration statement in
accordance with Rule 428 under the Securities Act of 1933, as amended
(the "Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which previously have been filed by the Company
with the Securities and Exchange Commission (the "Commission"), are incorporated
herein by reference and made a part hereof:
a) The Company's Annual Report on Form 10-K for the year ended
December 31, 2000;
b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 30, 2001;
c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form S-1 (Registration No.
33-28855), including any amendment or report filed for the
purpose of updating such description; and
d) The description of the Rights to Purchase Series A Junior
Participating Preferred Stock (the "Rights") and of the Series A
Junior Participating Preferred Stock, par value $.01 per share,
contained in the Company's Registration Statement on Form 8-A
(File No. 001-10269), including any amendment or report filed
for the purpose of updating such description.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), subsequent to the date of this Registration
Statement and prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereunder have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
of such documents.
For purposes of this Registration Statement, any statement contained in
a document incorporated or deemed to be incorporated herein by reference shall
be deemed to be modified or superseded to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed to
be incorporated herein by reference modifies or supersedes such statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
2
3
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the General Corporation Law of the State of Delaware
(the "GCL") provides that a Delaware corporation may indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no cause to believe his conduct was
unlawful.
Section 145(b) of the GCL provides that a Delaware corporation may
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
corporation to procure a judgment in its favor by reason of the fact that such
person acted in any of the capacities set forth above, against expenses actually
and reasonably incurred by such person in connection with the defense or
settlement of such action or suit if he or she acted under similar standards to
those set forth above, except that no indemnification may be made in respect to
any claim, issue or matter as to which such person shall have been adjudged to
be liable to the corporation unless and only to the extent that the court in
which such action or suit was brought shall determine that despite the
adjudication of liability, but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to be indemnified for such
expenses which the court shall deem proper.
Section 145 of the GCL further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to in subsection (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith; that
indemnification provided for by Section 145 shall not be deemed exclusive of any
other rights to which the indemnified party may be entitled; and that the
corporation may purchase and maintain insurance on behalf of a director or
officer of the corporation against any liability asserted against such officer
or director and incurred by him or her in any such capacity or arising out of
his or her status as such, whether or not the corporation would have the power
to indemnify him or her against such liabilities under Section 145.
As permitted by Section 102(b)(7) of the GCL, the Company's Certificate
of Incorporation provides that a director shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director. However, such provision does not eliminate or limit the liability of a
director for acts or omissions not in good faith or for breaching his or her
duty of loyalty, engaging in intentional misconduct or knowingly violating the
law, paying a dividend or approving a stock repurchase which was illegal, or
obtaining an improper personal benefit. A provision of this type has no effect
on the availability of equitable remedies, such as injunction or rescission, for
breach of fiduciary duty. The Company's Certificate of Incorporation requires
that directors and officers be indemnified to the maximum extent permitted by
Delaware law.
The Company has entered into indemnity agreements with each of its
directors and officers. These indemnity agreements require that the Company pay
on behalf of each director and officer party
3
4
thereto any amount that he or she is or becomes legally obligated to pay because
of any claim or claims made against him or her because of any act or omission or
neglect or breach of duty including any actual or alleged error or misstatement
or misleading statement, which he or she commits or suffers while acting in his
or her capacity as a director and/or officer of the Company and solely because
of his or her being a director and/or officer. Under the GCL, absent such an
indemnity agreement, indemnification of a director or officer is discretionary
rather than mandatory (except in the case of a proceeding in which a director or
officer is successful on the merits). Consistent with the Company's Bylaw
provision on the subject, the indemnity agreements require the Company to make
prompt payment of defense and investigation costs and expenses at the request of
the director or officer in advance of indemnification, provided that the
recipient undertakes to repay the amounts if it is ultimately determined that he
or she is not entitled to indemnification for such expense and provided further
that such advance shall not be made if it is determined that the director or
officer acted in bad faith or deliberately breached his or her duty to the
Company or its stockholders and, as a result, it is more likely than not that it
will ultimately be determined that he or she is not entitled to indemnification
under the terms of the indemnity agreement. The indemnity agreements make the
advance of litigation expenses mandatory absent a special determination to the
contrary, whereas under the GCL absent such an indemnity agreement, such advance
would be discretionary. Under the indemnity agreement, the Company would not be
required to pay or reimburse the director or officer for his or her expenses in
seeking indemnification recovery against the Company. By the terms of the
indemnity agreement, its benefits are not available if the director or officer
has other indemnification or insurance coverage for the subject claim or, with
respect to the matters giving rise to the claim, (i) received a personal
benefit, (ii) violated Section 16(b) of the Exchange Act or analogous provisions
of law, or (iii) committed certain acts of dishonesty. Absent the indemnity
agreement, indemnification that might be made available to directors and
officers could be changed by amendments to the Company's Certificate of
Incorporation or Bylaws.
The Company has a policy of directors' liability insurance that insures
the directors and officers against the cost of defense, settlement or payment of
a judgment under certain circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit No. Description
----------- -----------
4.1 Allergan, Inc. 2001 Premium Priced Stock Option Plan
(incorporated by reference to Exhibit C to the Company's Proxy
Statement filed on March 23, 2001).
5.1 Opinion of Counsel (relating to legality of securities being
registered).
23.1 Consent of KPMG LLP, independent auditors.
23.2 Consent of Counsel (contained in Exhibit 5 hereto).
24.1 Power of Attorney (contained on signature page hereto).
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
4
5
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement;
and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any
material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a 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
Exchange Act that are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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 Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Act and will be governed by a final
adjudication of such issue.
5
6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
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 Irvine, State of California, on July 16, 2001.
ALLERGAN, INC.
By: /s/ ERIC K. BRANDT
-------------------------------------
Eric K. Brandt, Corporate Vice
President, Chief Financial Officer,
and President, Global Consumer Eye
Care Business
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Douglas S. Ingram his true and lawful attorney-in-fact and agent with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement or any related
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent with full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, 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 indicated on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ DAVID E. I. PYOTT President, Chief Executive Officer, and July 16, 2001
----------------------------- Chairman of the Board
David E. I. Pyott (Principal Executive Officer)
/s/ ERIC K. BRANDT Corporate Vice President, July 16, 2001
----------------------------- Chief Financial Officer and President, Global
Eric K. Brandt Consumer Eye Care Business
(Principal Financial Officer)
/s/ JAMES M. HINDMAN Senior Vice President and Controller July 16, 2001
----------------------------- (Principal Accounting Officer)
James M. Hindman
/s/ RONALD M. CRESSWELL Director July 16, 2001
-----------------------------
Ronald M. Cresswell
/s/ HANDEL E. EVANS Director July 16, 2001
-----------------------------
Handel E. Evans
/s/ MICHAEL R. GALLAGHER Director July 16, 2001
-----------------------------
Michael R. Gallagher
S-1
7
SIGNATURE TITLE DATE
--------- ----- ----
/s/ WILLIAM R. GRANT Director July 16, 2001
-----------------------------
William R. Grant
/s/ GAVIN S. HERBERT Chairman Emeritus, Director July 16, 2001
-----------------------------
Gavin S. Herbert
/s/ LESTER J. KAPLAN Director July 16, 2001
-----------------------------
Lester J. Kaplan
/s/ KAREN R. OSAR Director July 16, 2001
-----------------------------
Karen R. Osar
/s/ ANTHONY H. WILD Director July 16, 2001
-----------------------------
Anthony H. Wild
S-2
8
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
5.1 Opinion of Counsel (relating to legality of securities being
registered).
23.1 Consent of KPMG LLP, independent auditors.