As filed with the Securities and Exchange Commission on February 14, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SCIOS INC.
(Exact name of registrant as specified in its charter)
Delaware SCIOS INC. 95-3701481
(State or Other Jurisdiction 820 West Maude Avenue (I.R.S. Employer
of Incorporation or Organization) Sunnyvale, California 94085 Identification Number)
(408) 616-8200
(Address, including ZIP code, and
telephone number, including area code,
of registrant's principal executive offices)
SCIOS INC.
1996 NON-OFFICER STOCK OPTION PLAN
(Full Title of the Plan)
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Matthew R. Hooper
General Counsel
SCIOS INC.
820 West Maude Avenue
Sunnyvale, California 94085
(408) 616-8200
(Name, address, including ZIP code, and telephone number,
including area code, of agent for service)
Copy to:
Kimberly L. Wilkinson, Esq.
LATHAM & WATKINS
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered(1) Per Share (2) Price(2) Registration Fee
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Common Stock, $.001 Par Value 3,000,000 shares $20.15 $60,450,000 $5,561.40
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(1) The Scios Inc. 1996 Non-Officer Stock Option Plan authorizes the issuance
of a maximum of 6,795,000 shares of the Company's Common Stock in
connection with stock bonuses, restricted stock and upon the exercise of
stock options, 3,000,000 of which are being registered hereunder. The
remaining 3,795,000 shares were registered on three Registration Statements
on Form S-8, the first filed September 9, 1997 (File No. 333-35201) for
700,000 shares; the second filed June 8, 1998 (File No. 333-56269) for
800,000 shares; and the third filed June 28, 2001 (File No. 333-64052) for
2,295,000 shares. 1,619,551 shares of the 3,000,000 shares being registered
hereunder have been granted as stock options as of February 13, 2002.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(h), as amended, and is based on the average of the high and low
sale prices of the Common Stock, as reported on The Nasdaq National Market
on February 7, 2002.
Proposed sale to take place as soon as practical after the
Registration Statement becomes effective.
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PART I
Item 1. Plan Information
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information
Not required to be filed with this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference
The following documents filed by Scios Inc., a Delaware
corporation (the "Company" or the "Registrant") under the Securities Exchange
Act of 1934, as amended, with the SEC are incorporated herein by reference.
(a) Our Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, filed with the SEC on March 30, 2001, as
amended by our Amendment No. 1 to our Annual Report on Form
10-K/A for the fiscal year ended December 31, 2000, filed with
the SEC on May 29, 2001, Amendment No. 2 to our Annual Report
on Form 10-K/A for the fiscal year ended December 31, 2000,
filed with the SEC on June 20, 2001 and Amendment No. 3 to our
Annual Report on Form 10-K/A for the fiscal year ended
December 31, 2000, filed with the SEC on June 21, 2001;
(b) Our prospectus supplement and accompanying prospectus filed
pursuant to Rule 424(b) of the Securities Act of 1933 with
the SEC on June 19, 2001;
(b) Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2001, filed with the SEC on May 15, 2001;
(c) Our Quarterly Report on Form 10-Q for the quarter ended June
30, 2001, filed with the SEC on August 1, 2001;
(d) Our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001, filed with the SEC on November 9, 2001;
(e) The description of our Common Stock, par value $.001 per
share, contained in our Registration Statement on Form 8-A,
filed with the SEC on June 19, 1990, including any
subsequently filed amendments and reports updating such
description; and
(f) All other reports filed by the Company pursuant to Sections
13(a) and 15(d) of the Exchange Act since December 31, 2000.
In addition, all documents which we file pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and are a part hereof from the date of
filing such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Under Section 145 of the General Corporation Law of the State
of Delaware (DGCL), a corporation may indemnify its directors, officers,
employees and agents and its former directors, officers, employees and agents
and those who serve, at the corporation's request, in such capacities with
another enterprise, against expenses (including attorney's fees), as well as
judgments, fines and settlements in nonderivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. The DGCL provides, however, that such person must have acted in
good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation and, in the case of a criminal
action, such person must have had no reasonable cause to believe his or her
conduct was unlawful. In addition, the DGCL does not permit indemnification in
an action or suit by or in the right of the corporation, where such person has
been adjudged liable to the corporation, unless, and only to the extent that, a
court determines that such person fairly and reasonably is entitled to indemnity
for costs the court deems proper in light of liability adjudication. Indemnity
is mandatory to the extent a claim, issue or matter has been successfully
defended.
Article IV of our Restated Certificate of Incorporation, as
amended, provides that the liability of our directors for monetary damages shall
be eliminated to the fullest extent permissible under Delaware law. In addition,
under indemnification agreements with our directors, we are obligated, to the
fullest extent permissible by the DGCL, as it currently exists or may be
amended, to indemnify and hold harmless our directors, from and against all
expense, liability and loss reasonably incurred or suffered by such directors.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
The following documents are filed as part of this Registration
Statement.
Exhibit Number Description
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5.1 Opinion of Latham & Watkins regarding the legality
of securities registered.
23.1 Consent of Latham & Watkins (included in its opinion
filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included in the signature page
to this Registration Statement).
Item 9. Undertakings
(a) We hereby undertake:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in
this 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 SEC
by us 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) We hereby undertake that, for purposes of determining any
liability under the Securities Act, each filing of our annual report pursuant to
Section 13(a) or Section 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 Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been advised
that in the opinion of the SEC 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 one of our directors,
officers or controlling persons 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, we will, unless in the opinion
of our counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
us is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, we certify that we have reasonable grounds to believe that we meet all
of the requirements for filing on Form S-8 and have duly caused this
Registration Statement to be signed on our behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on this 14th day
of February, 2002.
SCIOS INC.
By: /s/ Donald B. Rice
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Donald B. Rice
Chairman of the Board of Directors
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Scios, Inc., a
Delaware corporation, do hereby constitute and appoint Donald B. Rice, David W.
Gryska and Matthew R. Hooper, and each of them, the lawful attorneys and agents,
with full power and authority to do any and all acts and things and to execute
any and all instruments which said attorneys and agents, and any one of them,
determine may be necessary or advisable or required to enable said corporation
to comply with the Securities Act of 1933, as amended, and any rules or
regulations or requirements of the Securities and Exchange Commission in
connection with this Registration Statement. Without limiting the generality of
the foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
all that said attorneys and agents, or any of them, shall do or cause to be done
by virtue hereof. This power of attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
power of attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
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/s/ Donald B. Rice Acting Chief Executive Officer February 14, 2002
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Donald B. Rice (Principal Executive Officer)
/s/ David W. Gryska Senior Vice President, February 14, 2002
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David W. Gryska Finance and Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Donald B. Rice Chairman of the Board February 14, 2002
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Donald B. Rice
/s/ Samuel H. Armacost Director February 14, 2002
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Samuel H. Armacost
Director February __, 2002
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Richard B. Brewer
/s/ Randal J. Kirk Director February 14, 2002
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Randal J. Kirk
/s/ Charles A. Sanders Director February 14, 2002
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Charles A. Sanders
/s/ Solomon H. Snyder Director February 14, 2002
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Solomon H. Snyder
/s/ Burton E. Sobel Director February 14, 2002
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Burton E. Sobel
/s/ Eugene L. Step Director February 14, 2002
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Eugene L. Step