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As filed with the Securities and Exchange Commission on
August 15, 2005
Registration No. 333------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
A.P. Pharma, 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.)
123 Saginaw Drive, Redwood City, California 94063
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(Address of Principal Executive Offices)
2002 Equity Incentive Plan
--------------------------
1997 Employee Stock Purchase Plan
---------------------------------
(Full Title of the Plan)
Michael O'Connell
President and Chief Executive Officer
A.P. Pharma, Inc.
123 Saginaw Drive
Redwood City, California 94063
------------------------------
(Name and Address of Agent for Service)
(650) 366-2626
--------------
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Richard A. Peers, Esq.
Heller Ehrman LLP
275 Middlefield Road
Menlo Park, California 94025-3506
(650) 324-7000
CALCULATION OF REGISTRATION FEE
=====================================================================
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price per Offering Registration
Registered Registered(1) Share (2) Price Fee
- ---------------------------------------------------------------------
Common
Stock, par
value $0.01 550,000 $1.74 $957,000 $112.64
=====================================================================
(1) Represents 400,000 additional shares issuable upon exercise of
stock options to be granted under Registrant's 2002 Equity Incentive
Plan and 150,000 additional shares issuable upon exercise of purchase
rights granted under the Registrant's 1997 Employee Stock Purchase
Plan, including such additional number of shares as may be required
by reason of the anti-dilution provisions of such plans.
(2) 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
August 11, 2005.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
The shares being registered herein are 400,000 additional
shares of common stock authorized to be issued under Registrant's
2002 Equity Incentive Plan and 150,000 additional shares of common
stock authorized to be issued under Registrant's 1997 Employee
Stock Purchase Plan. Pursuant to Instruction E of Form S-8, the
contents of the S-8 Registration Statements (File Numbers 333-
35151 and 333-118546) with respect to the Registrant's 2002 Equity
Incentive Plan and the contents of the S-8 Registration Statements
(File Numbers 333-90428 and 333-118546) with respect to the
Registrant's 1997 Employee Stock Purchase Plan are hereby
incorporated by reference.
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, 2004;
(b) The Registrant's Quarterly Reports on Form 10-Q for
the fiscal quarters ended March 31, 2005 and June 30, 2005;
(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
(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 8. Exhibits
4.1 2002 Equity Incentive Plan (included in the Registrant's
S-8, File Number 333-90428, incorporated herein by
reference)
4.2 1997 Employee Stock Purchase Plan (included in the
Registrant's S-8, File Number 333-35151, incorporated
herein by reference)
5.1 Opinion of Heller Ehrman LLP
23.1 Consent of Independent Registered Public Accounting Firm
23.2 Consent of Heller Ehrman LLP
(filed as part of Exhibit 5.1)
24.1 Power of Attorney (see page II-2)
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933,
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 15th day of August,
2005.
A.P. PHARMA, INC.
By: /s/ Michael O'Connell
----------------------
Michael O'Connell
President and Chief Executive
Officer
POWER OF ATTORNEY
-----------------
KNOW ALL MEN BY THESE PRESENT, that each person whose
signature appears below does hereby constitute and appoint Michael
O'Connell and Gordon Sangster, 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
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 of 1933, this
Registration Statement on Form S-8 has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- ------------------------------------------------------------------
/S/ Michael O'Connell President and Chief August 15, 2005
- ------------------------ Executive Officer ---------------
Michael O'Connell (Principal Executive
Officer)
/S/ Gordon Sangster Chief Financial Officer August 15, 2005
- ------------------------ (Principal Financial ---------------
Gordon Sangster and Accounting Officer)
/S/ Paul Goddard Chairman of the Board August 15, 2005
- ------------------------ of Directors ---------------
Paul Goddard
/S/ Stephen Drury Director August 15, 2005
- ------------------------ ---------------
Stephen Drury
/S/ Peter Riepenhausen Director August 15, 2005
- ------------------------ ---------------
Peter Riepenhausen
/S/ Toby Rosenblatt Director August 15, 2005
- ------------------------ ---------------
Toby Rosenblatt
/S/ Gregory Turnbull Director August 15, 2005
- ------------------------ ---------------
Gregory Turnbull
/S/ Dennis Winger Director August 15, 2005
- ------------------------ ---------------
Dennis Winger
/S/ Robert Zerbe Director August 15, 2005
- ------------------------ ---------------
Robert Zerbe
INDEX TO EXHIBITS
-----------------
Item No. Description of Item
- -------- -------------------
4.1 2002 Equity Incentive Plan (included
in the Registrant's S-8, File Number
333-90428, incorporated herein by
reference)
4.2 1997 Employee Stock Purchase Plan
(included in the Registrant's S-8,
File Number 333-35151, incorporated
herein by reference)
5.1 Opinion of Heller Ehrman LLP
23.1 Consent of Independent Registered Public
Accounting Firm
23.2 Consent of Heller Ehrman LLP
(filed as part of Exhibit 5.1)
24.1 Power of Attorney (see page II-2)
(continued from previous page)
5
4
EXHIBIT 5.1
August 15, 2005
A.P. Pharma, Inc.
123 Saginaw Drive
Redwood City, California 94063
RE:Registration Statement on Form S-8
---------------------------------------------
Ladies and Gentlemen:
This opinion is furnished to A.P. Pharma, Inc. (the "Company") in
connection with the filing of a Registration Statement on Form S-
8 (the "Registration Statement") with the Securities and Exchange
Commission for the purpose of registering under the Securities
Act of 1933, as amended, an aggregate of 550,000 shares of common
stock, par value $0.01 (the "Shares"). Of the Shares, 400,000
are issuable under the Company's 2002 Equity Incentive Plan (the
"Equity Plan") and 150,000 are issuable under the Company's 1997
Employee Stock Purchase Plan (the "Stock Plan", and together with
the Equity Plan, the "Plans").
We have based our opinion upon our review of the following
records, documents, instruments and certificates:
The Amended and Restated Certificate of Incorporation of the
Company, as amended to date (the "Certificate"), certified by the
Delaware Secretary of State as of August 8, 2005, and 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;
The Bylaws of the Company (the "Bylaws") 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;
Records certified to us by an officer of the Company as
constituting all records of proceedings and of actions of the
Board of Directors and stockholders relating to the adoption of
the Plans and the reservation of the Shares for issuance pursuant
to the Plans;
The Plans; and
Information provided by the Company's transfer agent as to the
number of shares of Common Stock outstanding as of August 15,
2005.
In connection with this opinion, we have, with your consent,
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
authenticity and conformity to the originals of all records,
documents and instruments submitted to us as copies.
This opinion is limited to the federal laws of the United States
of America and the Delaware General Corporation Law, 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
regional or local governmental body or as to any related judicial
or administrative opinion.
Our opinion is qualified to the extent that in the event of a
stock split, share dividend or other reclassification of the
Common Stock effected subsequent to the date hereof, the number
of shares of Common Stock issuable under the Plans may be
adjusted automatically, as set forth in the terms of the Plans,
such that the number of such shares, as so adjusted, may exceed
the number of Company's remaining authorized, but unissued shares
of Common Stock following such adjustment.
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 subject to the assumptions and qualifications
expressed herein, it is our opinion that upon payment of the
purchase price for the Shares and issuance and delivery of the
Shares pursuant to the terms of the Plans, the Shares will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to,
and to the use of this opinion in connection with, the
Registration Statement.
Very truly yours,
/s/ Heller Ehrman LLP
---------------------
Heller Ehrman LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the 2002 Equity Incentive
Plan and 1997 Employee Stock Purchase plan of A.P. Pharma, Inc.
of our reports dated March 11, 2005, with respect to the
consolidated financial statements of A.P. Pharma, Inc. included
in its Annual Report (Form 10-K) for the year ended December 31,
2004, and A.P. Pharma, Inc. management's assessment of the
effectiveness of internal control over financial reporting, the
effectiveness of internal control over financial reporting of
A.P. Pharma, Inc., and the related financial statement schedule
of A.P. Pharma, Inc. included therein, filed with the Securities
and Exchange Commission.
/s/ Ernst & Young, LLP
----------------------
Ernst & Young, LLP
Palo Alto, California
August 11, 2005