As filed with the Securities and Exchange Commission on October , 1998
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ELI LILLY AND COMPANY
(Exact name of registrant as specified in its charter)
LILLY CORPORATE CENTER
INDIANA INDIANAPOLIS, INDIANA 46285 35-0470950
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(State or other (Address of Principal Executive Offices) (I.R.S. Employer
jurisdiction of (Zip Code) Identification No.)
incorporation or
organization)
1998 Lilly Stock Plan, 1994 Lilly Stock Plan, 1989 Lilly Stock Plan
(Full Title of the Plan)
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Rebecca O. Goss, Senior Vice President and General Counsel
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 317-276-2000
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CALCULATION OF REGISTRATION FEE
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Title of Amount to be Proposed maximum Proposed maximum Amount of
securities to be registered offering price aggregate registration fee
registered per share(1) offering price(1)
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Common Stock 54,000,000 $74.28125 $4,011,187,500 $1,115,110.13
shares
(1) Pursuant to Rule 457(h), these prices are estimated solely for the
purpose of calculating the registration fee and are based upon the average of
the high and low sales prices of Registrant's Common Stock in the consolidated
reporting system on October 19, 1998.
There are also registered hereunder such additional indeterminate number
of shares as may be issued as a result of the antidilution provisions of the
1998 Lilly Stock Plan.
Pursuant to Rule 429, this Registration Statement also refers to
Registration Statements No. 33-56141, 33-29482 and 333-62015.
PART I
Item 1. PLAN INFORMATION
Not included pursuant to Form S-8 instructions.
Item 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not included pursuant to Form S-8 instructions.
PART II
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Annual Report of Eli Lilly and Company (the "Company" or
"Registrant") on Form 10-K for the fiscal year ended December 31, 1997, the
Quarterly Reports of the Company on Form 10-Q for the fiscal quarters ended
March 31, 1998, and June 30, 1998 and the description of the Company's common
stock contained in the Company's Registration Statement under the Securities
Exchange Act of 1934 with respect to that stock filed with the Securities and
Exchange Commission, including any amendments or reports filed for the purpose
of updating that description, are incorporated in this Registration Statement by
reference. All documents filed by the Company pursuant to Section 13, 14, or
15(d) of the Securities Exchange Act of 1934 after the date of this Registration
Statement and 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 in this
Registration Statement and to be a part of this Registration Statement from the
date of filing of those documents with the Commission.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
James B. Lootens, Assistant Secretary and Associate General Counsel
of the Company, has provided an opinion as to the legality of the securities
offered hereby. Mr. Lootens beneficially owns 8,197 shares of common stock of
the Company and holds options to purchase an additional 19,600 shares of such
stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Indiana Business Corporation Law provides that a corporation,
unless limited by its Articles of Incorporation, is required to indemnify its
directors and officers against reasonable expenses incurred in the successful
defense of any proceeding arising out of their serving as a director or officer
of the corporation.
To the fullest extent permitted by the Indiana Business Corporation
Law, the Company's Articles of Incorporation provide for indemnification of
directors, officers, and employees of the Company against any and all liability
and expense actually and reasonably incurred by them, arising out of any claim
or action, civil, criminal, administrative or investigative, in which they may
become involved by reason of being or having been a director, officer, or
employee. To be entitled to indemnification, (a) those persons must have been
wholly successful in the claim or action on the merits or otherwise or (b) the
Board of Directors, independent legal counsel, or the shareholders must have
determined that such persons acted in good faith in what they reasonably
believed to be in the best interests of the Company (or in the case of conduct
not in the individual's official capacity with the Company, at least not opposed
to its best interests) and, in addition, in any criminal action, had no
reasonable cause to believe that their conduct was unlawful or had reasonable
cause to believe their conduct was lawful.
Officers and directors of the Company are insured, subject to certain
exclusions and deductible and maximum amounts, against loss from claims arising
in connection with their acting in their respective capacities, including claims
under the Securities Act of 1933.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
Exhibit
Number Description
5 Opinion of James B. Lootens, Assistant Secretary and
Associate General Counsel of the Company, including
his consent
23 Consent of Ernst & Young LLP, Independent Auditors
Item 9. 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, represents 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 a 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)(l)(i) and (a)(l)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to section 13
or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 of 1933,
each filing of the Registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in the
Registration Statement 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.
(c) 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 Securities and Exchange
Commission such indemnification is against public policy as
expressed in the 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 Act and will be governed by the final adjudication of such
issue.
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 Indianapolis, State of Indiana, on October 19, 1998.
ELI LILLY AND COMPANY
By s/Sidney Taurel
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Sidney Taurel, President and
Chief Executive Officer
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 date indicated.
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SIGNATURE TITLE DATE
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s/Sidney Taurel President, Chief Executive Officer, October 19, 1998
- ------------------------------------ and a Director (principal executive
(Sidney Taurel) officer)
s/Charles E. Golden Executive Vice President, Chief Financial October 19, 1998
- ------------------------------------ Officer and a Director (principal
(Charles E. Golden) financial officer)
s/Arnold C. Hanish Chief Accounting Officer (principal October 19, 1998
- ------------------------------------ accounting officer)
(Arnold C. Hanish)
s/Evan Bayh Director October 19, 1998
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(Evan Bayh)
s/Steven C. Beering, M.D. Director October 19, 1998
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(Steven C. Beering, M.D.)
s/Alfred G. Gilman, M.D., Ph.D. Director October 19, 1998
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(Alfred G. Gilman, M.D., Ph.D.)
s/Karen N. Horn, Ph.D. Director October 19, 1998
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(Karen N. Horn, Ph.D.)
s/Kenneth L. Lay, Ph.D. Director October 19, 1998
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(Kenneth L. Lay, Ph.D.)
s/Franklyn G. Prendergast, Ph.D. Director October 19, 1998
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(Franklyn B. Prendergast, Ph.D.)
s/Kathy P. Seifert Director October 19, 1998
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(Kathy P. Seifert)
s/Randall L. Tobias Director October 19, 1998
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(Randall L. Tobias)
s/August M. Watanabe Director October 19, 1998
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(August M. Watanabe)
s/Alva O. Way Director October 19, 1998
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(Alva O. Way)
INDEX TO EXHIBITS
The following documents are filed as part of this Registration Statement:
Exhibit
5 Opinion of James B. Lootens, Assistant Secretary and
Associate General Counsel of the Company, including his consent
23 Consent of Ernst & Young LLP, Independent Auditors
EXHIBIT 5
[Letterhead of Eli Lilly and Company]
October 23, 1998
Eli Lilly and Company
Lilly Corporate Center
Indianapolis, Indiana 46285
Gentlemen:
On or about October 23, 1998, Eli Lilly and Company (the "Company") will file
with the Securities and Exchange Commission on Form S-8 its Registration
Statement ("Registration Statement") relating to 54,000,000 shares of Common
Stock that may be issued or transferred by the Company upon the exercise of
stock options or pursuant to performance awards or restricted stock grants, that
may be granted to employees of the Company and its subsidiaries under the 1998
Lilly Stock Plan (the "Plan").
With respect to the Company and shares of its Common Stock, I am of the opinion
that:
A. The Company is a corporation duly organized and validly existing under
the laws of the State of Indiana.
B. The 54,000,000 shares of Common Stock referred to above:
(i) are duly authorized;
(ii) upon selection, in accordance with the terms of the Plan, of
grantees from among those employees of the Company and its
subsidiaries eligible for receipt of stock options, performance
awards, and restricted stock grants ("Eligible Employees"), may
be validly included in grants of stock options, performance
awards, and restricted stock grants to such Eligible Employees;
and
(iii) will be validly issued and outstanding, fully paid and
nonassessable upon issuance or transfer:
(a) pursuant to the due exercise of stock options in
accordance with the terms and subject to
Eli Lilly and Company
Lilly Corporate Center
October 23, 1998
the conditions of the Plan and the payment of the
option price stated in such options;
(b) pursuant to fulfillment of all conditions required by the
Plan for the issuance or transfer of such shares of Common
Stock pursuant to performance awards; and
(c) pursuant to restricted stock grants subject, however, to
termination of the grant and the requirement for
re-transfer of the shares to the Company if the grantee
does not comply with the restrictions of the restricted
stock grant.
In arriving at the foregoing opinion, I have examined corporate records, plans,
agreements and other documents of the Company.
I consent to the use of this opinion as an exhibit to the Registration
Statement. In giving such consent, I do not admit that I come within the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the Rules and Regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
James B. Lootens
Assistant Secretary and
Associate General Counsel
JBL:mlc
Exhibit 23
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1998 Lilly Stock Plan of Eli Lilly and
Company of our report dated January 30, 1998, with respect to the consolidated
financial statements and schedules of the Company incorporated by reference in
its Annual Report (Form 10-K) for the year ended December 31, 1997, filed with
the Securities and Exchange Commission.
Indianapolis, IN
October 26, 1998
Ernst & Young LLP
