View:
As filed with the Securities and Exchange Commission on August 4, 1998
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.
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(Exact Name of Registrant as Specified in Its Charter)
Delaware 94-2875566
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
123 Saginaw Drive, Redwood City, California 94063
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(Address of Principal Executive Offices)
1992 Stock Plan
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(Full Title of the Plan)
Michael O'Connell
Chief Financial Officer
Advanced Polymer Systems, Inc.
123 Saginaw Drive
Redwood City, California 94063
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(Name and Address of Agent for Service)
(650) 366-2626
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(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
(650) 324-7000
August 4, 1998
10008-0006
Advanced Polymer Systems, Inc.
123 Saginaw Drive
Redwood City, California 94063
Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Advanced Polymer Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Registration
Statement on Form S-8 (the "Registration Statement") which the Company
proposes to file with the Securities and Exchange Commission on August 4,
1998 for the purpose of registering under the Securities Act of 1933, as
amended, an additional 750,000 shares of its Common Stock, par value $.01
(the "Shares"). The Shares are issuable under the Company's 1992 Stock
Plan (the "Plan").
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all
signatures, the legal capacity of natural persons and the conformity to
the originals of all records, documents and instruments submitted to us
as copies.
In rendering our opinion, we have examined the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company, certified by the
Delaware Secretary of State as of July 6, 1998, and certified to us by an
officer of the Company as being complete and in full force as of the date
of this opinion;
(b) The Bylaws of the Company certified to us by an officer of the
Company as being complete and in full force and effect as of the date of
this opinion;
(c) A certificate of an officer of the Company (i) attaching records
certified to us as constituting all records of proceedings and actions of
the Board of Directors, including any committee thereof, and stockholders
of the Company relating to the Shares, and the Registration Statement,
and (ii) certifying as to certain factual matters;
(d) The Registration Statement;
(e) The Plan; and
(f) A letter from Boston EquiServe, LP, the Company's transfer agent,
dated August 3, 1998, as to the number of shares of the Company's Common
Stock that were outstanding on July 30, 1998.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware, and we
disclaim any opinion as to the laws of any other jurisdiction. We
further disclaim any opinion as to any other statute, rule, regulation,
ordinance, order or other promulgation of any other jurisdiction or any
regional or local governmental body or as to any related judicial or
administrative opinion.
Based upon the foregoing and our examination of such questions of law as
we have deemed necessary or appropriate for the purpose of this opinion,
and assuming that (i) the Registration Statement becomes and remains
effective during the period when the Shares are offered and issued, (ii)
the full consideration stated in the Plan is paid for each Share and that
such consideration in respect of each Share includes payment of cash or
other lawful consideration at least equal to the par value thereof, (iii)
appropriate certificates evidencing the Shares are executed and delivered
by the Company, and (iv) all applicable securities laws are complied
with, it is our opinion that when issued and sold by the Company, after
payment therefore in the manner provided in the Plan and the Registration
Statement, the Shares will be legally issued, fully paid and
nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied
upon by you for any other purpose, or relied upon by any other person,
firm, corporation or other entity for any purpose, without our prior
written consent. We disclaim any obligation to advise you of any change
of law that occurs, or any facts of which we may become aware, after the
date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ HELLER EHRMAN WHITE & MCAULIFFE
The Board of Directors
Advanced Polymer Systems, Inc.:
We consent to the use of our report incorporated herein by reference.
/s/ KPMG Peat Marwick LLP
San Francisco, California
August 4, 1998
ADVANCED POLYMER SYSTEMS, INC.
1992 STOCK PLAN
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1. Purpose. The purpose of the Advanced Polymer Systems, Inc., 1992
Stock Plan (the "Plan") is to attract, retain and motivate directors,
officers, key employees and consultants of Advanced Polymer Systems, Inc.
(the "Company"), and its subsidiaries by giving them the opportunity to
acquire stock ownership in the Company. Option grants under this Plan
may be either incentive stock options ("ISOs") intended to satisfy the
requirements of Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code"), or nonstatutory stock options ("NSOs"), and this
Plan and any options granted hereunder shall be appropriately construed
to conform to such requirements. This Plan also provides for the direct
sale of shares to eligible participants, and for the award of shares of
restricted stock.
2. Effective Date and Term of Plan. This Plan was adopted by the
Company's Board of Directors (the "Board") and became effective on March
24, 1992. This Plan shall terminate automatically ten (10) years after
its effective date unless terminated earlier by the Board under Section
12. No options, purchase rights or restricted stock awards shall be
granted after termination of this Plan but all options, purchase rights
or restricted stock awards granted prior to termination shall remain in
effect in accordance with their terms.
3. Number and Source of Shares Subject to the Plan. Subject to the
provisions of Section 10, the total number of shares of stock with
respect to which options, purchase rights or restricted stock awards may
be granted under this Plan is 4,000,000 shares of Common Stock, $.01 par
value, of the Company (the "Stock"). The shares covered by any
terminated or expired option or purchase right or the unexercised portion
thereof or any grant of restricted stock forfeited pursuant to Section
9(f) shall become available again for grant under this Plan. The shares
to be issued hereunder upon exercise of an option or purchase right or
the grant of a restricted stock award may consist of authorized and
unissued shares or treasury shares.
4. Administration of the Plan. The Plan shall be administered by the
Board, or upon delegation by the Board, by a committee consisting of not
less than two directors (in either case, the "Administrator"). So long
as not otherwise required for the Plan to comply with Rule 16b-3 under
the Securities Exchange Act of 1934, as amended, the Administrator may
delegate nondiscretionary administrative duties to such employees of the
Company or a subsidiary as it deems proper. The Administrator may also
make rules and regulations which it deems useful to administer this Plan.
Any decision or action of the Administrator in connection with this Plan
or any options, purchase rights or restricted stock awards granted or
shares purchased under this Plan shall be final and binding. No member
of the Board shall be liable for any decision, action or omission
respecting this Plan, or any options or purchase rights granted or shares
issued under this Plan.
5. Persons Eligible to Participate in this Plan.
(a) ISOs may be granted under this Plan only to employees of the
Company or any subsidiary of the Company, including employees who may
also be officers or directors of the Company or any subsidiary. NSOs,
purchase rights and restricted stock awards may be granted to employees,
including employees who may also be officers or directors, directors,
consultants and potential employees (in contemplation of employment) of
the Company or any subsidiary. All grants shall be made by the
Administrator. Determination by the Administrator as to eligibility
shall be conclusive.
(b) Notwithstanding any other provision of this Plan, Nonemployee
Directors shall automatically receive grants under this Plan in
accordance with this Section 5(b).
(i) Subject to the terms and conditions of this Plan, when any
Nonemployee Director who has not previously been a member of the Board is
first elected or appointed as a member of the Board, then on the
effective date of such appointment or election the Company shall grant to
such new Non-employee Director an NSO to purchase 25,000 shares at an
exercise price equal to the fair market value of such shares on the date
of such option grant.
(ii) Subject to the terms and conditions of this Plan, on the
date of the first meeting of the Board immediately following the annual
meeting of stockholders of the Company (even if held on the same day as
the meeting of stockholders) which is held more than twelve (12) months
after a Non-employee Director is first elected or appointed to the Board,
commencing with the annual meeting of stockholders held in May 1992 (or,
if no annual meeting is held that month or, in the case of any year after
1992, if no annual meeting is held before the last business day of July
of that year, then on the last business day of July 1992 or of such other
July, as the case may be), the Company shall grant to each Nonemployee
Director then in office an NSO to purchase 10,000 shares at an exercise
price equal to the fair market value of such shares on the date of such
option grant.
(iii) Subject to the other provisions of this Plan, each option
granted pursuant to this Section 5(b) shall be for a term of ten (10)
years. Each option granted under Section 5(b)(i) shall become
exercisable with respect to one-fourth of the number of shares covered by
such option on the first, second, third and fourth anniversary of the
date such option was granted, so that such option shall be fully
exercisable beginning on such fourth anniversary of the date such option
was granted. Each option granted under Section 5(b)(ii) shall be fully
exercisable beginning on the first anniversary of the date such option
was granted.
6. Grant of Options. The Administrator may, in its discretion, grant
options under this Plan at any time and from time to time before the
expiration of ten (10) years from the effective date of this Plan. The
Administrator shall specify the date of grant or, if it fails to, the
date of grant shall be the date of the action taken by the Administrator
to grant the option (in either case, the "Grant Date"). If an ISO is
approved in anticipation of employment of any employee, the Grant Date
shall be the date the intended optionee is first treated as an employee
of the Company or any subsidiary for payroll purposes. As soon as
practicable after the Grant Date, the Company will provide the optionee a
written stock option agreement in the form approved by the Administrator
(the "Option Agreement"), which designates the option as an ISO or an
NSO, and identifies the Grant Date, the number of shares of Stock covered
by the option, the option price and the other terms and conditions of the
option.
7. Terms and Conditions of Options. Options granted under this Plan
shall be subject to the following terms and conditions and such other
terms and conditions not inconsistent with this Plan as the Administrator
may impose:
(a) Exercise of Option. In order to exercise all or a portion of
any option granted under this Plan, an optionee must remain as an
employee (in the case of an ISO), or as an employee, officer, director or
consultant (in the case of an NSO) of the Company or a subsidiary of the
Company until the date on which the option or portion thereof, becomes
exercisable (the "Vesting Date"). The option shall be partially
exercisable on or after each Vesting Date with respect to the percentage
of total shares covered by the option as set out in the Option Agreement.
If an option (or portion thereof) is not exercised on the
earliest Vesting Date on which it becomes exercisable, it may be
exercised, in whole or in part, prior to its expiration date; provided,
however, that no option granted under this Plan may be exercised more
than ten (10) years from the Grant Date. If, at the time the Company
grants an ISO, the optionee directly or by attribution owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any subsidiary, the ISO shall not be
exercisable more than five (5) years after the Grant Date.
Notwithstanding any other provisions of this Plan, to the
extent required by Section 422 of the Code, the aggregate fair market
value of Common Stock first becoming exercisable by an optionee in any
calendar year under all ISOs granted to the optionee together with all
other incentive stock options granted to such optionee covering stock of
the Company (or any company which, at the time of grant, was a parent or
subsidiary of the Company) shall not exceed $100,000 (or such other
amount as may be in effect from time to time). If, by their terms such
ISOs and other incentive stock options, when taken together, would first
become exercisable at a rate which would exceed such limit then, unless
otherwise provided in the Option Agreement, the portion thereof which
exceeds such limit shall be NSOs. For this purpose, value shall be the
fair market value of the Common Stock when the options were granted and
options shall be taken into account in the order in which they were
granted.
(b) Option Price. The option price shall be at least 100% of the
fair market value of the shares covered by the option on the Grant Date,
as determined in good faith by the Administrator. If, at the time the
Company grants an ISO, the optionee directly or by attribution owns stock
possessing more than 10% of the total combined voting power of all
classes of stock of the Company or any subsidiary, the option price shall
be at least 110% of the fair market value of the shares covered by the
ISO on the Grant Date determined in the same manner.
(c) Method of Exercise. To the extent the right to purchase shares
has accrued, an option (or portion thereof) may be exercised from time to
time in accordance with its terms by written notice from the optionee to
the Company stating the number of shares with respect to which the option
is being exercised and accompanied by payment in full of the exercise
price of the shares. Payment may be made in cash, by check or, at the
absolute discretion of the Administrator, by delivery of an
interest-bearing, full recourse promissory note or shares of Common Stock
of the Company, endorsed in favor of the Company or accompanied by an
appropriate stock power, or by a combination of the above, or any other
form of consideration approved by the Administrator (including payment in
accordance with any cashless exercise program permitted by applicable
law, including, without limitation Regulation T promulgated by the
Federal Reserve Board, as amended from time to time). Any share
delivered to the Company as payment upon exercise of an option shall be
valued at the fair market value on the date of exercise of the option
determined in good faith by the Administrator.
(d) Nonassignability of Option Rights. Except as determined by the
Administrator in its absolute discretion, no option shall be transferable
other than by will or by the laws of descent and distribution and, during
the lifetime of an optionee, only the optionee may exercise an option.
(e) Exercise After Termination or Death. If, for any reason other
than permanent and total disability or death, an optionee ceases to be
employed by or to serve as a consultant to or a director of the Company
or a subsidiary (if such relationship forms the sole basis for the option
grant), options held at the date of such termination (to the extent then
exercisable) may be exercised in whole or in part at any time within
thirty (30) days after the date of such termination (but in no event
after the expiration date of the option as set forth in the Option
Agreement). Notwithstanding, if an optionee becomes permanently and
totally disabled (within the meaning of Section 22(e)(3) of the Code) or
dies while employed by or serving as a consultant to or director of the
Company or a subsidiary (or, if the optionee dies within the period that
the option remains exercisable after termination of employment,
consultancy or directorship), options then held (to the extent then
exercisable) may be exercised by the optionee, the optionee's personal
representative, or by the person to whom the option is transferred by
will or the laws of descent and distribution in whole or in part, at any
time within one year after the disability or death or any lesser period
specified in the Option Agreement (but in no event after the expiration
date of the option as set forth in the Option Agreement).
(f) Compliance with Securities Laws. The Company shall not be
obligated to issue any shares upon exercise of an option unless the
shares are at that time effectively registered or exempt from
registration under the federal securities laws and the offer and sale of
the shares are otherwise in compliance with all applicable securities
laws. The Company shall have no obligation to register the shares under
the federal securities laws or to take any other steps necessary to
enable the shares to be offered and sold under federal or other
securities laws. Upon exercising all or any portion of an option, an
optionee may be required to furnish representations or undertakings
deemed appropriate by the Company to enable the offer and sale of the
option shares or subsequent transfers of any interest in the shares to
comply with applicable securities laws. Stock certificates evidencing
shares acquired upon exercise of options shall bear any legend required
by, or useful for purposes of compliance with, applicable securities
laws, this Plan or the Option Agreement evidencing the option.
8. Purchase Rights.
(a) Grant. The Administrator may, in its discretion, permit direct
sales of Common Stock under this Plan at any time before expiration of
ten (10) years from the effective date of this Plan. Shares may be
issued at a price not less than the fair market value on the date of
sale, payable at the option of the Administrator in cash or other lawful
consideration. As soon as practicable after the grant of a purchase
right, the Administrator shall advise the grantee in writing of the
terms, conditions and restrictions relating to the grant, including the
number of shares, the purchase price, the method of payment (which may
include, in the absolute discretion of the Administrator, delivery of an
interest-bearing, full recourse promissory note), the time within which
the purchase right must be exercised, and the repurchase right, if any,
available to the Company.
(b) Purchase Agreement. Each sale of shares pursuant to a purchase
right shall be evidenced by an agreement between the purchaser and the
Company in such form and containing such terms, conditions and
restrictions as are approved by the Administrator, which agreement need
not be identical for different purchasers. Stock certificates evidencing
shares acquired pursuant to a purchase right shall bear any legend
required by, or useful for purposes of compliance with, applicable
securities laws, this Plan or the agreement evidencing the purchase
right.
9. Restricted Stock.
(a) Grant. The Administrator may, in its discretion, grant
restricted stock awards under this Plan at any time and from time to time
before the expiration of ten (10) years from the effective date of this
Plan.
(b) Restricted Stock Agreement. As soon as practicable after the
grant of restricted stock, which in no event shall be later than thirty
(30) days after the Grant Date of the restricted stock, the Company will
provide the participant with a written restricted stock agreement in the
form approved by the Administrator (the "Restricted Stock Agreement"),
setting forth the terms and conditions of the grant.
(c) Price. Participants awarded restricted stock, within fifteen
(15) days of receipt of the Restricted Stock Agreement, shall pay to the
Company an amount equal to the purchase price determined by the
Administrator, which shall be no less than the par value of the Stock
subject to the award. If such payment is not made and received by the
Company by such date, the grant of restricted stock shall lapse.
(d) Restrictions. Subject to the provisions of the Plan and the
Restricted Stock Agreement, during a period set by the Administrator,
commencing with, and not less than three (3) years and not exceeding ten
(10) years from, the Grant Date of the restricted stock (the "Restriction
Period"), the participant shall not be permitted to sell, assign,
transfer, pledge or otherwise encumber shares of restricted stock.
Within these limits, the Administrator may provide for the lapse of such
restrictions in installments, but, subject to Section 12(e), may not
accelerate or waive such restrictions.
(e) Dividends. Unless otherwise determined by the Administrator,
cash dividends with respect to shares of restricted stock shall be
automatically reinvested in additional shares of restricted stock, and
dividends payable in Stock shall be paid in the form of restricted stock.
(f) Termination. Except to the extent otherwise provided in the
Restricted Stock Agreement and pursuant to Section 12(e), upon
termination of a participant's employment for any reason during the
Restriction Period, all shares still subject to restriction shall be
forfeited by the participant and shall be repurchased by the Company for
an amount equal to the original purchase price.
10. Payment of Taxes. Regardless of the form of payment, exercise of an
option or the lapse of restrictions on a restricted stock award may be
conditioned on payment in cash, or provision satisfactory to the
Administrator for payment to the Company, of all local, state and federal
withholding taxes which, in the Administrator's judgment, are payable in
connection therewith.
If and to the extent consented to by the Administrator, in its sole
discretion, an eligible participant in the Plan who has exercised an
option or received a restricted stock award may make an election to: (a)
tender previously-owned shares of Stock; or (b) have shares of Stock to
be obtained upon exercise of an option or lapse of restrictions
applicable to restricted stock withheld by the Company on behalf of the
optionee, to pay the amount of tax that the Administrator, in its
discretion, determines is required to be withheld by the Company as a
result of such exercise or lapse of restrictions.
11. Adjustment for Changes in Capitalization. The existence of
outstanding options and restricted stock awards shall not affect the
Company's right to effect adjustments, recapitalizations, reorganizations
or other changes in its or any other corporation's capital structure or
business, any merger or consolidation, any issuance of bonds, debentures,
preferred or prior preference stock ahead of or affecting the Stock, the
dissolution or liquidation of the Company's or any other corporation's
assets or business or any other corporate act whether similar to the
events described above or otherwise. Subject to Section 12, if the
outstanding shares of the Stock are increased or decreased in number or
changed into or exchanged for a different number or kind of securities of
the Company or any other corporation by reason of a recapitalization,
reclassification, stock split, combination of shares, stock dividend or
other event, the number and kind of securities with respect to which
options or shares of restricted stock may be granted under this Plan, the
number and kind of securities as to which outstanding options may be
exercised and shares of restricted stock may be received, and the option
price at which outstanding options may be exercised, may be adjusted in
the sole discretion of the Administrator and without regard to any
resulting tax consequences to the optionee.
12. Dissolution, Liquidation, Merger. In the event of a dissolution or
liquidation of the Company, a merger or consolidation in which the
Company is not the surviving corporation, a reverse merger in which the
Company is the surviving corporation but in which more than 50% of the
shares of its Common Stock outstanding before the merger are held, after
the merger, by holders different from those immediately prior to the
merger, or a sale of over 80% of the assets of the Company, the
Administrator may, in its discretion, do one or more of the following
with respect to each outstanding option or each share of restricted stock
upon not less than ten (10) days prior written notice to the optionee:
(a) accelerate the vesting of such option (subject, in the case of
ISOs, to the limitation set forth in Section 7(a) of this Plan);
(b) cancel such option to the extent then exercisable upon payment
in cash to the optionee of the amount by which any cash and the fair
market value of any other property which the optionee would have received
as consideration for the shares issuable on exercise of the option, if
such option had been exercised before such liquidation, dissolution,
merger, consolidation, reverse merger or sale, exceeds the exercise price
thereof;
(c) shorten the period during which such option is exercisable,
provided such option shall remain exercisable, to the extent otherwise
exercisable, for at least ten (10) days after the date the notice is
given;
(d) arrange for new option rights or shares of restricted stock to
be substituted for such option or restricted stock award, or for the
Company's obligations as to such option or restricted stock award to be
assumed by an employer corporation other than the Company or by a parent
or subsidiary of such employer corporation. The action described in this
Section 11 may be taken without regard to any resulting tax consequences
to the optionee and may differ with respect to different options; or
(e) waive the restrictions on the shares of restricted stock.
13. Rights as Shareholder; Employee. An optionee shall have no rights
as a shareholder with respect to any shares covered by an option until
the stock certificates representing the shares are actually delivered to
the optionee. Subject to Sections 11 and 12, no adjustment shall be made
for dividends or other rights for which the record date is prior to the
date the certificates are delivered. The grant of any option or shares
of restricted stock shall not, by itself, confer on any person any right
or inference of continued employment by, consultancy to or membership on
the Board of Directors of the Company.
14. Disqualifying Dispositions. If Stock acquired upon exercise of an
Incentive Stock Option is disposed of in a disqualifying disposition
within the meaning of Section 422 of the Code, the holder of the Stock
immediately prior to the disposition shall notify the Company in writing
of the date and the terms of such disposition and comply with any other
requirements imposed by the Company in order to enable the Company to
secure the related income tax deduction to which it is entitled.
15. Termination or Amendment. The Board may amend, alter or discontinue
the Plan or any option grant or any restriction on restricted stock
awards, but no amendment, alteration or discontinuance shall be made
which would impair the rights of a participant under an outstanding
option grant or restricted stock award without the participant's consent.
No amendment, alteration or discontinuance shall require stockholder
approval, except: (a) an increase in the total number of shares reserved
for issuance under the Plan; (b) with respect to provisions solely as
they relate to Incentive Stock Options, to the extent required for the
Plan to comply with Section 422 of the Code; (c) to the extent required
by other applicable laws, regulations or rules; or (d) to the extent the
Board otherwise concludes that stockholder approval is advisable.
16. Parent and Subsidiary. As used in this Plan, "parent" and
"subsidiary" mean any corporation in an unbroken chain of corporations
which includes the Company if, at the relevant time, each of the
corporations other than the last corporation in the chain owns stock
possessing more than 50% of the total combined voting power of all
classes of stock of one of the other corporations in the chain.
17. Rule 16b-3. Notwithstanding any provision of the Plan, it is
intended that option grants shall always be granted and exercised in such
a manner as to conform to the provisions of Rule 16b-3. Notwithstanding
the foregoing, it shall be the responsibility of persons subject to
Section 16 of the Exchange Act, not of the Company or the Administrator,
to comply with the requirements of Section 16 of the Exchange Act; and
neither the Company nor the Administrator shall be liable if this Plan or
any transaction under this Plan fails to comply with the applicable
conditions of Rule 16b-3, or if any such person incurs any liability
under Section 16 of the Exchange Act.
18. Governing Law. This Plan and the rights of all persons under this
Plan shall be construed in accordance with and under applicable
provisions of the Internal Revenue Code of 1986, as amended, and the laws
of the State of California.