As filed with the Securities and Exchange Commission on August 22, 2006
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GILEAD SCIENCES, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 94-3047598 | |
| (State of Incorporation) | (I.R.S. Employer Identification No.) |
333 Lakeside Drive
Foster City, CA 94404
(650) 574-3000
(Address of principal executive offices)
Corus Pharma, Inc. 2001 Stock Plan
(Full title of the plans)
John F. Milligan
Executive Vice President and Chief Financial Officer
333 Lakeside Drive
Foster City, CA 94404
(650) 574-3000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Kenneth L. Guernsey, Esq.
Cooley Godward LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
(415) 693-2000
This Registration Statement will become effective immediately upon filing with the Securities and Exchange Commission. Sales of the registered securities will begin as soon as reasonably practicable after the effective date of this Registration Statement.
CALCULATION OF REGISTRATION FEE
| Title of Securities to be Registered | Amount to be Registered (1) |
Proposed Maximum Offering Price per Share (2) |
Proposed Maximum Aggregate Offering Price (2) |
Amount of Registration Fee | |||||||
| Stock Options and Common Stock, par value $0.001 per share to be issued under the Corus Pharma, Inc. 2001 Stock Plan |
333,551 shares | $ | 20.2933 | $ | 6,768,850.51 | $ | 724.27 | ||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall cover any additional shares of Common Stock which become issuable under the Corus Pharma, Inc. 2001 Stock Plan set forth herein by reason of any stock dividend, stock split, recapitalization or any other similar transaction without receipt of consideration which results in an increase in the number of shares of the Registrant’s outstanding Common Stock. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h). The proposed maximum offering price per share and proposed maximum aggregate offering price have been computed based upon the weighted average exercise price for shares of common stock subject to outstanding options granted pursuant to the Corus Pharma, Inc. 2001 Stock Plan. |
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Gilead Sciences, Inc. (the “Company” or the “Registrant”) with the Securities and Exchange Commission (the “SEC”) are incorporated by reference into this Registration Statement:
(a) The Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005 filed with the SEC on March 3, 2006.
(b) (1) The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2006 filed with the SEC on May 3, 2006. The Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2006 filed with the SEC on August 4, 2006.
(b) (2) The Company’s Current Reports on Form 8-K filed with the SEC on January 31, 2006 (as amended on Form 8-K/A filed with the SEC on February 22, 2006), February 7, 2006, April 18, 2006 (disclosing information under Items 8.01 and 9.01 of Form 8-K), April 20, 2006, April 25, 2006, May 11, 2006, June 7, 2006, July 20, 2006 (disclosing information under Item 1.01 of Form 8-K) and August 4, 2006.
(c) The description of the Company’s Common Stock which is contained in a Registration Statement on Form 8-A filed December 22, 1992 (File No. 000-24821), under the Exchange Act of 1934, as amended (the “Exchange Act”), together with Amendment No. 1 on Form 8-A/A (File No. 000-19731) filed under the Exchange Act on October 31, 2003, and including any amendment or report filed for the purpose of updating such description. The description of the Company’s preferred share purchase rights contained in Registration Statement on Form 8-A/A (File No. 000-19731) filed under the Exchange Act on October 31, 2003.
All reports and other documents subsequently filed by the Company 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 have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such reports and documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be passed upon for the Registrant by Cooley Godward LLP, Palo Alto, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company has broad powers to indemnify its directors and officers against liabilities they may incur in such capacities, including liabilities under the Securities Act. The Company’s Bylaws require the Company to indemnify its directors and executive officers, and permit the Company to indemnify its other officers, employees and other agents, to the extent permitted by Delaware law. Under the Company’s Bylaws, indemnified parties are entitled to indemnification for negligence, gross negligence and otherwise to the fullest extent permitted by law. The Bylaws also require the Company to advance litigation expenses incurred by any director or executive officer in connection with any proceeding, against an undertaking by the indemnified party to repay such advances if it is ultimately determined that the indemnified party is not entitled to indemnification.
In addition, the Company has obtained insurance to indemnify its directors and officers for certain liabilities, which may include liabilities arising under the Securities Act.
EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 (1) | Restated Certificate of Incorporation of the Registrant, as amended | |
| 3.2 (2) | Bylaws of the Registrant, as amended and restated March 30, 1999 | |
| 3.3 (3) | Certificate of Designation of Series A Junior Participating Preferred Stock of the Registrant, as amended | |
| 3.4 (4) | Certificate of Amendment to Restated Certificate of Incorporation of the Registrant | |
| 3.5 (4) | Certificate of Amendment to Certificate of Designation of the Registrant | |
| 4.1 | Reference is made to Exhibit 3.1, Exhibit 3.2, Exhibit 3.3, Exhibit 3.4 and Exhibit 3.5 | |
| 4.2 (5) | Amended and Restated Rights Agreement dated as of October 21, 1999 between the Registrant and ChaseMellon Shareholder Services, LLC | |
| 4.6 (6) | First Amendment to Amended and Restated Rights Agreement dated as of October 29, 2003 between the Registrant and Mellon Investor Services, LLC (formerly known as ChaseMellon Shareholder Services, LLC) | |
| 4.7 (7) | Second Amendment to Amended and Restated Rights Agreement dated as of May 11, 2006 between the Registrant and Mellon Investor Services, LLC | |
| 5.1 | Opinion of Cooley Godward LLP | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Cooley Godward LLP (included in Exhibit 5.1 to this registration statement) | |
| 24.1 | Power of Attorney (included on the signature page of this registration statement) | |
| 99.1 | Corus Pharma, Inc. 2001 Stock Plan | |
| 99.2 | Form of Corus Pharma, Inc. 2001 Stock Plan Stock Option Agreement | |
| (1) | Filed as an exhibit to Registrant’s Registration Statement on Form S-8 (File No. 333-117420), filed on July 19, 2004, and incorporated herein by reference. |
| (2) | Filed as an exhibit to Registrant’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 1998, and incorporated herein by reference. |
| (3) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed with the SEC on November 21, 1994 and incorporated herein by reference. |
| (4) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2006 and incorporated herein by reference. |
| (5) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed on October 22, 1999, and incorporated herein by reference. |
| (6) | Filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on October 31, 2003, and incorporated herein by reference. |
| (7) | Filed as an exhibit to Registrant’s Registration Statement on Form S-8 (File No. 333-135412), filed with the SEC on June 28, 2006, and incorporated herein by reference. |
UNDERTAKINGS
| 1. | The undersigned registrant hereby undertakes: |
(a) 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;
(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 the 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 a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement.
(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 (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(b) 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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.
(d) That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
| 2. | 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 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. |
| 3. | Insofar as indemnification for liabilities arising under the Securities Act 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 Securities and Exchange 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 whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Foster City, State of California, on August 22, 2006.
| GILEAD SCIENCES, INC. | ||
| By: | /s/ John C. Martin | |
| John C. Martin, Ph.D. | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints John C. Martin, Ph.D., and John F. Milligan, Ph.D., and each or any one 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 attorneys-in-fact and agents, and each of them, 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 attorneys-in-fact and agents, or any of them, or their 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 by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date | ||
| /s/ John C. Martin John C. Martin |
President and Chief Executive Officer, Director (Principal Executive Officer) |
August 22, 2006 | ||
| /s/ John F. Milligan John F. Milligan |
Executive Vice President, Chief Financial Officer (Principal Financial and Accounting Officer) |
August 22, 2006 | ||
| /s/ James M. Denny James M. Denny |
Chairman of the Board of Directors |
August 22, 2006 | ||
| /s/ Paul Berg Paul Berg |
Director |
August 22, 2006 | ||
| /s/ John F. Cogan John F. Cogan |
Director |
August 22, 2006 | ||
| /s/ Etienne F. Davignon Etienne F. Davignon |
Director |
August 22, 2006 | ||
| /s/ John W. Madigan John W. Madigan |
Director |
August 22, 2006 | ||
| /s/ Gordon E. Moore Gordon E. Moore |
Director |
August 22, 2006 | ||
| /s/ Nicholas G. Moore Nicholas G. Moore |
Director |
August 22, 2006 | ||
| /s/ Gayle E. Wilson Gayle E. Wilson |
Director |
August 22, 2006 | ||
EXHIBIT INDEX
| Exhibit Number |
Description | |
| 3.1 (1) | Restated Certificate of Incorporation of the Registrant, as amended | |
| 3.2 (2) | Bylaws of the Registrant, as amended and restated March 30, 1999 | |
| 3.3 (3) | Certificate of Designation of Series A Junior Participating Preferred Stock of the Registrant, as amended | |
| 3.4 (4) | Certificate of Amendment to Restated Certificate of Incorporation of the Registrant | |
| 3.5 (4) | Certificate of Amendment to Certificate of Designation of the Registrant | |
| 4.1 | Reference is made to Exhibit 3.1, Exhibit 3.2, Exhibit 3.3, Exhibit 3.4 and Exhibit 3.5 | |
| 4.2 (5) | Amended and Restated Rights Agreement dated as of October 21, 1999 between the Registrant and ChaseMellon Shareholder Services, LLC | |
| 4.6 (6) | First Amendment to Amended and Restated Rights Agreement dated as of October 29, 2003 between the Registrant and Mellon Investor Services, LLC (formerly known as ChaseMellon Shareholder Services, LLC) | |
| 4.7 (7) | Second Amendment to Amended and Restated Rights Agreement dated as of May 11, 2006 between the Registrant and Mellon Investor Services, LLC | |
| 5.1 | Opinion of Cooley Godward LLP | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Cooley Godward LLP (included in Exhibit 5.1 to this registration statement) | |
| 24.1 | Power of Attorney (included on the signature page of this registration statement) | |
| 99.1 | Corus Pharma, Inc. 2001 Stock Plan | |
| 99.2 | Form of Corus Pharma, Inc. 2001 Stock Plan Stock Option Agreement | |
| (1) | Filed as an exhibit to Registrant’s Registration Statement on Form S-8 (File No. 333-117420), filed on July 19, 2004, and incorporated herein by reference. |
| (2) | Filed as an exhibit to Registrant’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 1998, and incorporated herein by reference. |
| (3) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed with the SEC on November 21, 1994 and incorporated herein by reference. |
| (4) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed with the SEC on May 11, 2006 and incorporated herein by reference. |
| (5) | Filed as an exhibit to Registrant’s Current Report on Form 8-K filed on October 22, 1999, and incorporated herein by reference. |
| (6) | Filed as an exhibit to the Registrant’s Current Report on Form 8-K filed on October 31, 2003, and incorporated herein by reference. |
| (7) | Filed as an exhibit to Registrant’s Registration Statement on Form S-8 (File No. 333-135412), filed with the SEC on June 28, 2006, and incorporated herein by reference. |