As filed with the Securities and Exchange Commission on September 8, 1997
Registration No. 333-_________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Advanced Polymer Systems, Inc.
------------------------------------------------------
(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2875566
-------- ----------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
3696 Haven Avenue, Redwood City, California 94063
------------------------------------------------------
(Address of Principal Executive Offices)
1997 Employee Stock Purchase Plan
-----------------------------------------
(Full Title of the Plan)
Michael P.J. O'Connell
Chief Financial Officer
Advanced Polymer Systems, Inc.
3696 Haven Avenue
Redwood City, California 94063
-----------------------------------------
(Name and Address of Agent For Service)
(415) 366-2626
-----------------------------------------
(Telephone Number, Including Area Code, of Agent For Service)
Copy to:
Richard A. Peers, Esq.
Heller Ehrman White & McAuliffe
525 University Avenue
Palo Alto, California 94301-1908
(415) 324-7000
--------------
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Aggregate Offering Registration
per Share (1) Price Fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock, par value $0.01 400,000 $7.50 $3,000,000 $909
====================================================================================================================
<FN>
(1) Estimated solely for the purpose of computing the amount of registration
fee pursuant to Rule 457(c) under the Securities Act, as amended, based on
the average of the high and low prices of the Registrant's Common Stock
reported on the Nasdaq National Market on September 3, 1997.
</FN>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed or to be filed with the Securities and
Exchange Commission (the "Commission") by the Registrant are incorporated by
reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996;
(b) The Registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended June 30, 1997 and March 31, 1997;
(c) The description of the Registrant's Common Stock contained in the
registration statement on Form 8-A filed with the Commission on August 7, 1987
pursuant to Section 12 of the Exchange Act of 1934, as amended (the "Exchange
Act"), and the description of the Registrant's Preferred Share Purchase Rights
contained in the registration statement on Form 8-A filed with the Commission on
September 6, 1996 pursuant to Section 12 of the Exchange Act; and
(d) All documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold.
Item 6. Indemnification of Directors and Officers
The registrant has the power to indemnify its officers and directors
against liability for certain acts pursuant to Section 145 of the General
Corporation Law of the State of Delaware. Section B of Article VI of the
Registrant's Certificate of Incorporation provides:
"(1) Right to Indemnification. Each person who was or is made a party
or is threatened to be made a party to or is involved in any action, suit
or proceeding, whether civil, criminal, administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a
person of whom he or she is the legal representative, is or was a director
or officer, 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 of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis
of such 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 the Corporation to the fullest extent authorized by the General
Corporation Law of the State of Delaware, 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 the Corporation to provide broader
indemnification rights than said law permitted the Corporation to provide
prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or
penalties and amounts paid or to be paid in settlement) reasonably incurred
or suffered by such person in connection therewith and 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; provided,
II-1
however, that, the Corporation shall indemnify any such person seeking
indemnification in connection with a proceeding (or part thereof) initiated
by such person only if such proceeding (or part thereof) was authorized by
the board of directors of the Corporation. The right to indemnification
conferred in this Section B shall be a contract right and shall include the
right to be paid by the Corporation the expenses incurred in defending any
such proceeding in advance of its final disposition; provided, however,
that, if the General Corporation Law of the State of Delaware 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 to an employee benefit plan) in
advance of the final disposition of a proceeding, shall be made only upon
delivery to the Corporation of an undertaking, by or on behalf of such
director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to
be indemnified under this Section or otherwise. The Corporation may, by
action of its Board of Directors, provide indemnification to employees and
agents of the Corporation with the same scope and effect as the foregoing
indemnification of directors and officers.
(2) Non-Exclusivity 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 B shall not be exclusive of any
other rights which any person may have or hereafter acquire under any
statute, provisions of this Certificate of Incorporation, Bylaw, agreement,
vote of stockholders or disinterested directors or otherwise.
(3) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any such expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person against
such expense, liability or loss under Delaware General Corporation Law."
Registrant maintains directors' and officers' liability insurance in
the amount of $5,000,000 which covers civil liabilities. Such insurance helps
the Registrant to attract qualified officers and directors, by providing a means
for the Company to pay the costs and expenses involved in the event civil
litigation is brought against of one of the Registrant's officers or directors.
Item 8. Exhibits
5 Opinion of Heller Ehrman White & McAuliffe
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5)
24.1 Power of Attorney (see page II-4)
99.1 1997 Employee Stock Purchase Plan
II-2
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;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (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;
(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 by the Registrant
pursuant to Section 13 or 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 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 that is
incorporated by reference in the Registration Statement shall be deemed 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 Securities and Exchange 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 whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Redwood City, State of California, on this 8th day
of September, 1997.
ADVANCED POLYMER SYSTEMS, INC.
By:/s/ Michael P.J. O'Connell
--------------------------
Michael P.J. O'Connell
Chief Financial Officer
POWER OF ATTORNEY TO SIGN AMENDMENTS
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below does hereby constitute and appoint John J. Meakem, Jr. and Michael
P.J. O'Connell, or either of them, with full power of substitution, such
person's true and lawful attorneys-in-fact and agents for such person in such
person's name, place and stead, in any and all capacities, to sign any or all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8 and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises in order to effectuate the same as fully, to all intents and
purposes, as he or such person might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents may lawfully do or cause
to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
/s/ John J. Meakem, Jr. Chairman of the Board and September 8, 1997
- ---------------------------- President (Principal
John J. Meakem, Jr. Executive Officer)
/s/ Michael P.J. O'Connell Chief Financial Officer September 8, 1997
- ---------------------------- (Principal Financial and
Michael P.J. O'Connell Accounting Officer)
/s/ Carl Ehmann Director September 8, 1997
- ----------------------------
Carl Ehmann
II-4
/s/ Jorge Heller Director September 8, 1997
- ----------------------------
Jorge Heller
/s/ Peter Riepenhausen Director September 8, 1997
- ----------------------------
Peter Riepenhausen
/s/ Toby Rosenblatt Director September 8, 1997
- ----------------------------
Toby Rosenblatt
/s/ Gregory H. Turnbull Director September 8, 1997
- ----------------------------
Gregory H. Turnbull
/s/ C. Anthony Wainwright Director September 8, 1997
- ----------------------------
C. Anthony Wainwright
/s/ Dennis Winger Director September 8, 1997
- ----------------------------
Dennis Winger
II-5
INDEX TO EXHIBITS
Sequentially
Item No. Description of Item Numbered Page
5 Opinion of Heller Ehrman White & McAuliffe .........
23.1 Consent of KPMG Peat Marwick LLP ...................
23.2 Consent of Heller Ehrman White & McAuliffe
(filed as part of Exhibit 5) .......................
24.1 Power of Attorney (see page II-4) ..................
99.1 1997 Employee Stock Purchase Plan ..................
6