As filed with the Securities and Exchange Commission on January 18, 2001
Registration No. 333-____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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SCIOS INC.
(Exact name of registrant as specified in its charter)
Delaware 2834 95-3701481
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification
organization) Number)
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820 West Maude Avenue
Sunnyvale, California 94085
(408) 616-8200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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John H. Newman
Senior Vice President
SCIOS INC.
749 N. Mary Avenue
Sunnyvale, California 94085
(408) 616-8200
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
Kimberly L. Wilkinson, Esq.
Latham & Watkins
505 Montgomery Street, Suite 1900
San Francisco, California 94111
(415) 391-0600
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
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If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box./ /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box./x/
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering./ /
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering./ /
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box./ /
CALCULATION OF REGISTRATION FEE
======================= ================= ========================= ============================ ===================
Title of Each Class Amount to be Proposed Maximum Proposed Maximum Aggregate Amount of
of Securities to be Registered Offering Price Per Share Offering Price Registration Fee
Registered
======================= ================= ========================= ============================ ===================
Common Stock $0.001
par value -- -- $120,000,000(1) $ 30,000
======================= ================= ========================= ============================ ===================
(1) We estimate this amount only to calculate the Registration Fee pursuant to
Rule 457(o) under the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment that specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed.
We may not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS SUBJECT TO COMPLETION
January 18, 2001
SCIOS INC.
$120,000,000 OF COMMON STOCK
This prospectus will allow us to sell up to $120,000,000 in the aggregate
of common stock over time. This means:
o we may issue shares offered in this prospectus from time to time;
o we will provide a prospectus supplement each time we issue shares;
o the prospectus supplement will inform you about the specific terms of
that offering and also may add, update or change the information
contained in this prospectus; and
o you should read this prospectus and any prospectus supplement carefully
before you invest.
Our common stock is traded on the Nasdaq National Market under the symbol
"SCIO." On January 17, 2001, the last reported sale price of our common stock on
Nasdaq was $18.625 per share.
We will sell these securities directly to our stockholders or to purchasers
or through agents on our behalf or through underwriters or dealers as designated
from time to time. If any agents or underwriters are involved in the sale of any
of these securities, the applicable prospectus supplement will set forth the
names of the agents or underwriters and any applicable fees, commissions or
discounts.
This prospectus may not be used to offer or sell any securities unless
accompanied by a prospectus supplement.
Investing in our common stock involves a high
degree of risk. See "Risk Factors" on
page 5.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is __________, 2001.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with
the Securities and Exchange Commission (SEC) using a "shelf" registration
process. Under this shelf process, we may offer, from time to time, in one or
more offerings, up to $120,000,000 in the aggregate of our common stock.
This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described
immediately below under the heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. Our SEC filings are available to the public over
the Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file at the SEC's public reference rooms in Washington,
D.C., New York, New York and Chicago, Illinois. Please call the SEC at
1-800-732-0330 for further information on the public reference rooms.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to these documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below (and any amendments thereto) and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 until the offering of our common stock under
this registration statement is completed or withdrawn:
o Annual Report on Form 10-K for the fiscal year ended December 31, 1999
filed with the SEC on February 7, 2000.
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2000 filed
with the SEC on May 15, 2000.
o Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 filed
with the SEC on August 14, 2000.
o Quarterly Report on Form 10-Q for the quarter ended September 30, 2000
filed with the SEC on November 13, 2000.
o The description of our common stock contained in Form 8-A filed on June 19,
1990, including any amendments or reports filed to update such information.
To obtain a copy of these filings at no cost, you may write or
telephone us at the following address:
Corporate Secretary
Scios Inc.
749 N. Mary Avenue
Sunnyvale, CA 94085
(408) 616-8309
THE COMPANY
Scios Inc. is a biopharmaceutical company developing novel treatments
for heart failure and inflammatory diseases. The company's disease-based
technology platform integrates expertise in protein biology with combinatorial
and medicinal chemistry to identify novel targets and rationally design large
and small-molecule compounds to treat cardiovascular and inflammatory diseases.
Our principal executive offices are located at 820 W. Maude Avenue, Sunnyvale,
CA 94085, and our telephone number is (408) 616-8200.
We are developing the following products:
Natrecor(R) (nesiritide)
Our lead product candidate is Natrecor(R) (nesiritide). We filed an
amended New Drug Application (NDA) with the United States Food and Drug
Administration (FDA) in January 2001 seeking approval to market Natrecor(R) for
the treatment of acute decompensated heart failure. The FDA has a six month
period in which to respond to our filing. The amended NDA responds to questions
raised by the FDA in a non-approval letter issued in April 1999 for Natrecor(R).
To provide further information requested by the FDA, we conducted the VMAC
(Vasodilation in the Management of Acute Congestive heart failure) study for
Natrecor(R) in 498 acutely decompensated congestive heart failure patients in
the United States. The VMAC trial compared the effects of Natrecor(R) against
both placebo and intravenously administered (IV) nitroglycerin, a standard
therapy in the treatment of acute decompenstated heart failure.
The VMAC trial was successful in that we achieved our primary endpoints
for the trial. Specifically, in the VMAC trial, Natrecor(R) had a statistically
significant effect on the primary endpoint, reducing pulmonary capillary wedge
pressure (PCWP) in as little as 15 minutes, an effect that was sustained for at
least 48 hours without any loss of effectiveness (i.e., tachyphylaxis or
tolerance). At three hours, patients treated with Natrecor(R) had significant
improvement in PCWP, compared with those patients given placebo, and those
patients given IV nitroglycerin. At three hours, patients treated with
Natrecor(R) had significant improvement in their breathing, compared with those
patients given placebo. Using primarily a fixed dose infusion, Natrecor(R)
produced a more rapid improvement in hemodynamics than IV nitroglycerin, which
physicians need to titrate to achieve an effective dose. Significantly fewer
adverse events were reported in patients treated with Natrecor versus IV
nitroglycerin. The most common adverse event associated with Natrecor
administration was headache, which occurred significantly less often than in
patients treated with nitroglycerin (20% in the nitroglycerin patients vs. 9%
with Natrecor). In the VMAC study, symptomatic hypotension occurred in patients
treated with Natrecor at about the same rate as in patients treated with IV
nitroglycerin (4% and 5%, respectively) within 24 hours.
In January 2001 we announced that, assuming FDA approval, we would
launch Natrecor(R) in the United States using a sales force coordinated by
Innovex LLP, a commercial solutions provider to the biopharmacutical industry.
At the end of 2004 we can acquire this sales force from Innovex for a nominal
fee. In exchange for a royalty on Natrecor(R) sales for five years (2003-2007)
and a warrant to purchase 700,000 shares of Scios common stock at a price of
$20.00 per share that vests over 36 months, an affiliated company of Innovex has
agreed (assuming FDA approval) to
fund $30.0 million of our costs to launch Natrecor(R) over the first 24
months and loan Scios up to $5.0 million.
Inhibitors of p38 Kinase
We are also conducting a clinical trial of the lead compound developed
in our research program to discover small molecule compounds that inhibit p38
map kinase. p38 map kinase in white blood cells is a key enzyme in the
inflammation pathway. Specifically, inhibition of p38 map kinase has been shown
to reduce the production of tissue necrosis factor (TNF), a primary negative
factor in various disease pathways. We believe inhibitors of p38 map kinase
represent a new approach to treating various diseases where inflammation plays a
central role. In the past several years, inhibition of TNF has been established
to be a treatment for rheumatoid arthritis by the introduction of Enbrel(R)
(etanercept) by Immunex Corporation and Remicade(R) (infliximab) by Centocor,
Inc., a subsidiary of Johnson & Johnson. The Immunex and Centocor products are
administered by injection and infusion.
We have developed and applied for patents on small molecule
(non-protein) compounds that inhibit p38 map kinase and block TNF production at
the genomic level. Our small molecule agents are intended to be given orally,
which should provide a significant advantage when treating a chronic disease
such as rheumatoid arthritis. We believe another key theoretical advantage to
the Scios approach resides in the ability of our oral product to be prescribed
in a manner that allows careful dosage adjustment. Such adjustment could lead to
the same level of clinical efficacy seen in the other agents mentioned above,
but without shutting down TNF entirely as TNF also plays a positive role in
fighting infections.
We began our p38 map kinase research program in 1997. Our lead p38 map
kinase inhibitor is currently in Phase I human clinical trials to evaluate
bioavailability and pharmacodynamics in normal human volunteers. We currently
expect to begin our first Phase II trial in the second half of 2001. The
clinical indication we will initially target is rheumatoid arthritis because the
TNF reducing agents on the market have already demonstrated effectiveness
against this disease and the pathway to approval by the FDA has been clarified
by these other products. It appears that p38 map kinase inhibitors may also be
useful in treating other conditions that involve inflammation, such as
congestive heart failure and inflammatory bowel disease.
Partnered Projects
We also have commercial partners that are working to develop other
products we identified in our earlier research programs, including:
o human basic fibroblast growth factor (FGF) - our licensee, Chiron
Corporation, is conducting separate Phase II human clinical trials
evaluating FGF as treatment for coronary artery disease and peripheral
vascular disease.Our licensee, Kaken Pharmaceutical, Co., Ltd., has
pending in Japan an approval to market an FGF-based product for the
treatment of recalcitrant dermal ulcers.
o glucagon-like peptide -1 - Novo Nordisk A/S has completed Phase I human
clinical trials of a GLP -1 analog that they are developing under a
license from us as a treatment for type 2 diabetes.
RISK FACTORS
Investing in our securities involves risk. Please see the risk
factors set forth in the supplement which accompanies this prospectus as well as
our periodic reports on Form 10-K and Form 10-Q which have been filed with the
SEC, incorporated by reference into this prospectus and available on EDGAR at
http://www.sec.gov. Before making an investment decision, you should carefully
consider these risks as well as the other information contained or incorporated
by reference into this prospectus.
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any prospectus supplement and the documents we
incorporate by reference contain forward-looking statements. We generally
identify forward-looking statements using words like "believe," "intend,"
"expect," "may," "should," "plan," "project," "contemplate," "anticipate" or
similar statements. We base these statements on our beliefs as well as
assumptions we made using information currently available to us. Because these
statements reflect our current views concerning future events, these statements
involve risks, uncertainties and assumptions. These risks, uncertainties and
assumptions are described in the risk factors we set forth in this prospectus as
well as in the reports that we file with the SEC that are incorporated by
reference in this prospectus or that may be contained in a prospectus
supplement. Actual results may differ significantly from the results discussed
in these forward-looking statements. We do not undertake to update our
forward-looking statements or risk factors to reflect future events or
circumstances.
USE OF PROCEEDS
Unless we specify otherwise in a prospectus supplement, we intend to
use the net proceeds from the sales of common stock to provide additional funds
for our operations and for other general corporate purposes, which may include
but are not limited to working capital, capital expenditures and the repayment
or refinancing of our debt.
DILUTION
If you invest in our common stock, your interest would be diluted to
the extent of the difference between the public offering price per share of our
common stock and the adjusted net tangible book value per share of our common
stock after this offering. We calculate tangible net book value per share by
dividing the net tangible book value, which equals total assets, less intangible
assets and total liabilities, by the number of outstanding shares of our common
stock.
Assuming an offering price of $20.00 per share, our tangible net book
value at September 30, 2000 would have been $3.16 per share. This represents an
immediate increase in the tangible net book value per share of $2.63 per share
to existing stockholders and an immediate dilution of $16.84 share to new
investors.
The following table illustrates this per share dilution:
Assumed offering price per share.......................................$20.00
Tangible net book value per share as of September 30, 2000....$0.53
Increase per share attributable to new stockholders...........$2.63
Adjusted net tangible net book value per share after offering..........$ 3.16
Dilution per share to new stockholders.................................$16.84
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 150,000,000 shares of common
stock, par value $0.001 per share and 20,000,000 shares of preferred stock, par
value $0.001 per share. As of December 31, 2000, there were 39,124,257 shares of
common stock outstanding and 4,991 shares of preferred stock outstanding.
Voting Rights
Each share of common stock is entitled to one vote. The common stock
votes together as a single class on all matters presented for a vote of the
stockholders, except as provided under the Delaware General Corporation Law.
Dividends and Liquidation Rights
Each share of common stock is entitled to receive dividends, if, as and
when declared by the board of directors out of funds legally available for that
purpose. Subject to approval of certain holders of preferred stock in the event
of our dissolution, after satisfaction of amounts payable to our creditors and
distribution of any preferential amounts to the holders of outstanding preferred
stock, if any, holders of common stock are entitled to share ratably in the
assets available for distribution to the stockholders.
Other Provisions
There are no preemptive rights to subscribe for any additional
securities that we may issue, and there are not redemption provision or sinking
fund provisions applicable to the common stock. All outstanding shares of common
stock are legally issued, fully paid and nonassessable.
PLAN OF DISTRIBUTION
We may sell the common stock to one or more underwriters for public
offering and sale by them or may sell the common stock to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale of
the common stock will be named in the applicable prospectus supplement.
We may offer and sell the common stock at a fixed price or prices,
which may be changed, at prices related to the prevailing market prices at the
time of sale or at negotiated prices for cash or assets in transactions that do
not constitute a business combination within the meaning of Rule 145 promulgated
under the Securities Act. The terms and conditions of any specific offer will be
set forth in the applicable prospectus supplement. In connection with the sale
of the common stock, underwriters or agents may be deemed to have received
compensation from us in the form of underwriting discounts or commissions and
may also receive commissions from purchasers of the common stock for whom they
may act as agent. Underwriters may sell common stock to or through dealers, and
such dealers may receive compensation in the form of
discounts, concessions or commissions from the underwriters and/or commissions
from the purchasers from whom they may act as agent.
We also may, from time to time, authorize dealers, acting as our
agents, to offer and sell securities upon the terms and conditions as are set
forth in the applicable prospectus supplement. In connection with the sale of
securities, underwriters may receive compensation from us in the form of
purchasers of the securities for whom they may act as agent. Underwriters may
sell securities to or through dealers, and these dealers may receive
compensation in the form of discounts, concessions or commissions from the
underwriters and/or commissions from the purchasers for whom they may act as
agent.
Any underwriting compensation paid by us to underwriters or agents in
connection with the offering of the common stock, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, will be set
forth in the applicable prospectus supplement. Underwriters, dealers and agents
participating in the distribution of the common stock may be deemed to be
underwriters, and any discounts and commissions received by them and any profit
realized by them on resale of the common stock may be deemed to be underwriting
discounts and commissions, under the Securities Act. Underwriters, dealers and
agents may be entitled, under agreements entered into with us, to
indemnification against and contribution toward specified civil liabilities,
including liabilities under the Securities Act of 1933.
To the extent relevant, a prospectus supplement may also contain a
description of transactions that underwriters, dealers or agents may engage in
during an offering for the purpose of stabilizing or maintaining the price of
the common stock.
Some of the underwriters, dealers and agents and their affiliates may
engage in transactions with and perform services for us and our subsidiaries in
the ordinary course of our business.
NEW ACCOUNTING PRONOUNCEMENTS
As described in our Quarterly Report on Form 10-Q for the quarter ended
September 30, 2000, the SEC issued Staff Accounting Bulletin No. 101 (SAB 101)
"Revenue Recognition in Financial Statements". We will adopt SAB 101 effective
January 1, 2000 upon issuance of our financial statements for the year ended
December 31, 2000.
SAB 101 requires that our license and other up front fees received from
research collaborators be recognized as earned over the term of the agreement
unless the fee is in exchange for products delivered or services performed that
represent the culmination of a separate earnings process.
We have completed our evaluation of the effects of SAB 101 and have
concluded that the cumulative effect of adoption as of January 1, 2000 is
immaterial to our results of operations and financial position. However, certain
revenue recognized in periods prior to January 1, 2000 would have been
recognized in different periods in accordance with the provisions of SAB 101. In
the year ended December 31, 1998 we recorded a $20,000,000 license fee in
connection with our Natrecor(R) commercialization agreement with Bayer AG. Under
SAB 101, $19,148,000 of the amount of this license fee has been reallocated from
1998 to the year ended December 31, 1999, the year in which the Bayer AG
commercialization agreement was terminated. As a result
of this reallocation,the loss for the year ended December 31, 1998 increased by
$19,148,000 and the loss for the year ended December 31, 1999 decreased by
$19,148,000.
Concurrently with the implementation of SAB 101, we will implement the
consensus reached in EITF 99-19 "Reporting Revenue Gross as a Principal Versus
Net As an Agent". The effect of this consensus will result in netting the
revenues received from our psychiatric pharmaceutical marketing business and
co-promotion commissions with related direct costs, as such it will have no
effect on our previously reported operating results.
The pro forma effects of implementing SAB 101 and EITF 99-19 on the
results we have previously reported for the nine months ended September 30, 2000
and 1999 and for the years ended December 31, 1999, 1998 and 1997 are presented
below:
Nine months ended September 30, 2000
--------------------------- --------------------- ------------------------- ---------------------- ---------------------
Revenues ($000's) Net Loss ($000's) Basic Loss per Share Diluted Loss per
Share
--------------------------- --------------------- ------------------------- ---------------------- ---------------------
As Reported 30,804 (30,312) $(0.80) $(0.80)
--------------------------- --------------------- ------------------------- ---------------------- ---------------------
Pro-forma 9,107 (30,312) $(0.80) $(0.80)
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Nine months ended September 30, 1999
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Revenues ($000's) Net Income (Loss) Basic Earnings / Diluted Earnings /
($000's) (Loss) per Share (Loss) per share
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
As Reported 41,695 (18,369) $(0.49) $(0.49)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Pro-forma 35,079 779 $0.02 $0.02
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Year ended December 31, 1999
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Revenues ($000's) Net Loss ($000's) Basic Loss per Share Diluted Loss per
Share
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
As Reported 60,787 (20,064) $(0.53) $(0.53)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Pro-forma 47,503 (916) $(0.02) $(0.02)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Year ended December 31, 1998
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Revenues ($000's) Net Loss ($000's) Basic Loss per Share Diluted Loss per
Share
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
As Reported 73,715 (2,363) $(0.06) $(0.06)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Pro-forma 25,520 (21,511) $(0.57) $(0.57)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Year ended December 31, 1997
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Revenues ($000's) Net Loss ($000's) Basic Loss per Share Diluted Loss per
Share
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
As Reported 47,429 (38,667) $(1.07) $(1.07)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
Pro-forma 14,459 (38,667) $(1.07) $(1.07)
---------------------------- -------------------- ------------------------- ---------------------- ----------------------
LEGAL MATTERS
Latham & Watkins, San Francisco, California, will provide us with
opinions as to certain legal matters in connection with the common stock we are
offering.
EXPERTS
The consolidated financial statements incorporated in this prospectus
by reference to the Annual Report on Form 10-K for the year ended December 31,
1999, have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
ABOUT THIS PROSPECTUS..........................................................2
WHERE YOU CAN FIND MORE INFORMATION............................................2
THE COMPANY....................................................................3
RISK FACTORS...................................................................5
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION.............................5
USE OF PROCEEDS................................................................5
DILUTION.......................................................................5
DESCRIPTION OF CAPITAL STOCK...................................................6
PLAN OF DISTRIBUTION...........................................................6
NEW ACCOUNTING PRONOUNCEMENTS..................................................7
LEGAL MATTERS..................................................................9
EXPERTS........................................................................9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the fees and expenses in connection with
the issuance and distribution of the securities being registered. Except for the
SEC registration fee, all amounts are estimates.
Securities and Exchange Commission registration fee $ 30,000
-----------
Legal fees and expenses $ *
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Accounting fees and expenses $ *
-----------
Miscellaneous expenses $ *
-----------
Total $ *
==============
* To be filed by amendment
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 145 of the General Corporation Law of the State of
Delaware (the "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 Scios's Amended and Restated Certificate of
Incorporation, as amended, provides that Scios will indemnify its directors and
officers to the full extent permitted by law and that no director shall be
liable for monetary damages to the Registrant or its stockholders for any breach
of fiduciary duty, except to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Registrant or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL, or (iv) for any transaction from which such director derived an improper
personal benefit. In addition, under indemnification agreements with its
directors, the Registrant is obligated, to the fullest extent permissible by the
DGCL, as it
currently exists or may be amended, to indemnify and hold harmless its
directors, from and against all expense, liability and loss reasonably incurred
or suffered by such directors.
ITEM 16. EXHIBITS
(a) Exhibits:
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
1.01* Form of Underwriting Agreement
5.01 Opinion of Latham & Watkins
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consent of Latham & Watkins (included in their opinion filed
as Exhibit 5.01).
24.01 Powers of Attorney (included in the Signature Page to this
Registration Statement).
* To be filed by amendment or as an exhibit to a report
pursuant to Section 13(a), 13(c) or 15(d) of the Exchange
Act.
ITEM 17. 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;
(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 Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 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 the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (i) and (ii) above 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
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into 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 any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance under Rule 430A and
contained in a form of prospectus filed by the Registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to
be part of this registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
(d) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
(e) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 of whether such indemnification by it is against
public policy as expressed in theSecurities 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,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Sunnyvale, State of California, on the 18th day
of January, 2001.
SCIOS INC.
By /s/ Richard B. Brewer
-----------------------------------
Richard B. Brewer
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard B. Brewer, David W. Gryska and
John H. Newman, or any of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent or his
substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
President and Chief
/s/ Richard B.Brewer Executive Officer January 18, 2001
----------------------------------- (Principal Executive Officer)
Richard B. Brewer
Senior Vice President, Finance and
/s/ David W. Gryska Chief Financial Officer January 18, 2001
----------------------------------- (Principal Accounting Officer)
David W. Gryska
/s/ Donald B.Rice Chairman of the Board of Directors January 18, 2001
-----------------------------------
Donald B. Rice
/s/ Samuel H. Armacost Director January 18, 2001
-----------------------------------
Samuel H. Armacost
/s/ Randal J. Kirk Director January 18, 2001
-----------------------------------
Randal J. Kirk
/s/ Charles A. Sanders Director January 18, 2001
-----------------------------------
Charles A. Sanders
/s/ Solomon H. Snyder Director January 18, 2001
-----------------------------------
Solomon H. Snyder
/s/ Burton E. Sobel Director January 18, 2001
-----------------------------------
Burton E. Sobel
/s/ Eugene L. Step Director January 18, 2001
-----------------------------------
Eugene L. Step