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As filed with the Securities and Exchange Commission on
October 11, 2006
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)
Gregory H. Turnbull
President and Chief Executive Officer
A.P. Pharma, 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 LLP
275 Middlefield Road
Menlo Park, California 94025-3506
(650) 324-7000
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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 $1.18 $649,000 $76.39
================================================================
(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
October 9, 2006.
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 the
Registrant's 2002 Equity Incentive Plan and 150,000 additional
shares of common stock authorized to be issued under the
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 year
ended December 31, 2005;
(b) The Registrant's Quarterly Reports on Form 10-Q for the
fiscal quarters ended March 31, 2006 and June 30, 2006;
(c) The Registrant's Current Reports on Forms 8-K and 8-K/A
filed with the Commission on January 18, 2006, January 20, 2006,
February 1, 2006, February 6, 2006, April 5, 2006, June 6, 2006,
August 14, 2006, August 24, 2006, August 29, 2006, September 28,
2006, October 3, 2006 and October 10, 2006;
(d) 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 Securities Exchange
Act of 1934, as amended (the "Exchange Act"); and
(e) 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
Registration Statement on Form S-8 ("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
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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 11th day of October, 2006.
A.P. PHARMA, INC.
By: /s/ Gregory H. Turnbull
------------------------
Gregory H. Turnbull
President and Chief Executive
Officer
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below does hereby constitute and appoint Gregory
H. Turnbull and Stephen C. Whiteford, 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/ Gregory H. Turnbull President, Chief October 11, 2006
- -------------------------- Executive Officer, and ----------------
Gregory H. Turnbull Director (Principal
Executive Officer)
/S/ Stephen C. Whiteford Vice President, October 11, 2006
- -------------------------- Finance and Chief ----------------
Stephen C. Whiteford Financial Officer
(Principal Financial
and Accounting
Officer)
/S/ Paul Goddard Chairman of the October 11, 2006
- -------------------------- Board of Directors ----------------
Paul Goddard
/S/ Peter Riepenhausen Director October 11, 2006
- -------------------------- ----------------
Peter Riepenhausen
/S/ Toby Rosenblatt Director October 11, 2006
- -------------------------- ----------------
Toby Rosenblatt
/s/ Arthur Taylor Director October 11, 2006
- -------------------------- ----------------
Arthur Taylor
/S/ Dennis Winger Director October 11, 2006
- -------------------------- ----------------
Dennis Winger
/S/ Robert Zerbe Director October 11, 2006
- -------------------------- ----------------
Robert Zerbe
INDEX TO EXHIBITS
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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 Ernst & Young LLP
23.2 Consent of Heller Ehrman LLP
(filed as part of Exhibit 5.1)
24.1 Power of Attorney (see page II-2)
Exhibit 5.1
October 11, 2006
Main (650) 324-7000
Fax (650) 324-0638
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:
(a) 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;
(b) 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;
(c) 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;
(d) The Plans; and
(e) Information provided by the Company's transfer agent
as to the number of shares of Common Stock outstanding as of
October 9, 2006.
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
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Heller Ehrman LLP
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this
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 report dated February 24, 2006, with respect
to the financial statements and schedule of A.P. Pharma, Inc.
included in its Annual Report (Form 10-K) for the year ended
December 31, 2005, filed with the Securities and Exchange
Commission.
/S/ Ernst & Young LLP
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Ernst & Young LLP
Palo Alto, California
October 10, 2006