-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EOqOh62E7xgnwu0T42VgMg8UyibuFBjvD9746WnQrQkX8qjH8fNDkM5g7lUGTjxU hHTnK/BDu9QJJRxjzOd8Dw== 0000726512-00-000016.txt : 20000203 0000726512-00-000016.hdr.sgml : 20000203 ACCESSION NUMBER: 0000726512-00-000016 CONFORMED SUBMISSION TYPE: DEFA14A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SCIOS INC CENTRAL INDEX KEY: 0000726512 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 953701481 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: DEFA14A SEC ACT: SEC FILE NUMBER: 000-11749 FILM NUMBER: 519415 BUSINESS ADDRESS: STREET 1: 820 W MAUDE AVE CITY: SUNNYVALE STATE: CA ZIP: 94086 BUSINESS PHONE: 4159661550 MAIL ADDRESS: STREET 1: 820 WEST MAUDE AVENUE CITY: SUNNYVALE STATE: CA ZIP: 94086 FORMER COMPANY: FORMER CONFORMED NAME: SCIOS INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: CALIFORNIA BIOTECHNOLOGY INC DATE OF NAME CHANGE: 19920302 DEFA14A 1 DEFINITIVE ADDITIONAL MATERIALS SCHEDULE 14A INFORMATION Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934 (Amendment No. ) Filed by the Registrant /X/ Filed by a party other than the Registrant / / Check the appropriate box: / / Preliminary Proxy Statement / / Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) / / Definitive Proxy Statement /X/ Definitive Additional Materials / / Soliciting Material Pursuant to Section 240.14a-11(c) or Section 240.14a-12 Scios Inc. - -------------------------------------------------------------------------------- (Name of Registrant as Specified In Its Charter) - -------------------------------------------------------------------------------- (Name of Person(s) Filing Proxy Statement, if other than the Registrant) Payment of Filing Fee (Check the appropriate box): /X/ No fee required / / Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11 (1) Title of each class of securities to which transaction applies: - ------------------------------------------------------------------------ (2) Aggregate number of securities to which transaction applies: - ------------------------------------------------------------------------ (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): - ------------------------------------------------------------------------ (4) Proposed maximum aggregate value of transaction: - ------------------------------------------------------------------------ (5) Total fee paid: - ------------------------------------------------------------------------ / / Fee paid previously with preliminary materials. / / Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. (1) Amount Previously Paid: ------------------------------------------------------------------------ (2) Form, Schedule or Registration Statement No.: ------------------------------------------------------------------------ (3) Filing Party: ----------------------------------------------------------------------- (4) Date Filed: ------------------------------------------------------------------------ [SCIOS LETTERHEAD] February 1, 2000 DEAR STOCKHOLDER: We are pleased to inform you that the proxy contest between Scios and Randal J. Kirk has been resolved. On January 31, Scios signed a definitive settlement agreement with Mr. Kirk and certain entities he controls, ending his proxy solicitation to elect a new slate of directors. Under the agreement, Mr. Kirk has been added to the slate of candidates nominated by the Scios Board for election to a one-year term at the 2000 annual meeting of stockholders to be held on February 28, 2000. In return, he has withdrawn his nomination and has agreed to discontinue all solicitation activities. He has also agreed (if he is elected to the Board) to certain restrictions on his activities related to Scios until at least 90 days before next year's annual meeting and for a longer period if the Board decides to renominate him for a second term next year. We are convinced that this negotiated settlement is in the best interests of Scios and its stockholders. It enables Scios management to move forward with its business strategy, including the Natrecor(R) clinical testing and approval process. Furthermore, it gives Mr. Kirk, as a significant stockholder, an opportunity to work with the other directors and management to build value for all Scios stockholders. THE SCIOS BOARD HAS APPROVED THE SETTLEMENT AGREEMENT AND RECOMMENDS THAT YOU VOTE FOR ALL EIGHT NOMINEES AT THE ANNUAL MEETING. We are enclosing the following important documents for your information in connection with the settlement: o the joint press release issued by Scios and Mr. Kirk on January 31, 2000; o a supplement to our proxy statement containing additional information about the settlement agreement and the addition of Mr. Kirk as a Board nominee at the upcoming annual meeting; and o A new GOLD proxy card for your use in voting for all eight nominees. If you would like to review the complete text of the settlement agreement, you can find it on file with the Securities and Exchange Commission as part of our Current Report on Form 8-K dated February 1, 2000. You can also find it on our website located at www.sciosinc.com. WHETHER OR NOT YOU HAVE PREVIOUSLY RETURNED A GOLD PROXY CARD TO US OR A WHITE PROXY CARD TO MR. KIRK, WE ASK THAT YOU COMPLETE AND RETURN THE NEW GOLD PROXY CARD (WHICH IS ENCLOSED AND IS POSTAGE PRE-PAID IF MAILED IN THE UNITED STATES). THE WHITE PROXY CARD IS NO LONGER VALID FOR USE AT THE ANNUAL MEETING AND CANNOT BE USED TO VOTE FOR THE EIGHT BOARD NOMINEES, INCLUDING MR. KIRK. On Behalf of the Board of Directors Sincerely, /s/ Donald B. Rice /s/ Richard B. Brewer DONALD B. RICE RICHARD B. BREWER CHAIRMAN OF THE BOARD PRESIDENT AND CHIEF EXECUTIVE OFFICER IF YOU HAVE ANY QUESTIONS OR NEED ASSISTANCE COMPLETING YOUR PROXY CARD PLEASE CALL: MACKENZIE PARTNERS, INC. 156 FIFTH AVENUE NEW YORK, NEW YORK 10010 (212)929-5500 (CALL COLLECT) OR CALL TOLL-FREE (800)322-2855 2 EX-99.1 2 PRESS RELEASE [SCIOS LOGO] 820 West Maude Avenue Sunnyvale, CA 94086 www.sciosinc.com CONTACT: Wendy Carhart For Randal J. Kirk: Scios Inc. Caroline Gentile 408/616-8325 Kekst and Company or 212/521-4800 Stanley J. Kay MacKenzie Partners, Inc. 212/929-5940 FOR IMMEDIATE RELEASE: SCIOS AND R. J. KIRK AGREE TO END PROXY CONTEST Parties Focused On Building Stockholder Value SUNNYVALE, CALIFORNIA and RADFORD, VIRGINIA--January 31, 2000--Scios Inc. (NASDAQ:SCIO) and Randal J. Kirk jointly announced today a definitive agreement which enables Scios management to move forward with its business strategy and expands the board of directors, if elected by stockholders, to one that will, together with management, report beneficial ownership of nearly ten percent of the company's fully diluted shares. Under the agreement, which ends Mr. Kirk's proxy solicitation to elect a new slate of directors, Mr. Kirk will be added to the slate of candidates nominated by the Scios Board for election as directors at the 2000 annual meeting of stockholders to be held on February 28, 2000. This will raise the number of Board candidates to eight, including the seven current Scios Board members who are standing for re-election. If elected, Mr. Kirk as well as all other directors will serve for a one-year term. Accordingly, Mr. Kirk and certain entities he controls, which own approximately 5.2% of Scios' outstanding shares will vote their Scios shares in favor of the Board's nominees at the upcoming annual meeting. -- more -- January 31, 2000 Page 2 Randal J. Kirk stated, "I strongly believe that there is substantial shareholder value to be realized at Scios as evidenced by the size of my holdings, and I am pleased to be nominated to a slate of this caliber. I am convinced that Natrecor(R), for example, is a product with extremely attractive commercial potential, and that Scios' management should be in a position to devote its full energies to obtaining FDA approval for this product. At the same time, Scios' offer to have me on its board will enable me, if elected, to work with the other directors and management to build value for all Scios stockholders." Donald B. Rice, Scios' Chairman, and Richard B. Brewer, President and Chief Executive Officer, said, "The priority of the board and management of Scios is to achieve enhanced value for all stockholders. This negotiated agreement is consistent with that priority. By ending a distractive situation we can now devote everyone's energies to the business of growing Scios. Scios can now move forward with a board that is strong in business experience, industry expertise and stockholder representation. We believe Mr. Kirk can bring a valuable perspective to the board." Consistent with the agreement's spirit of cooperation, Mr. Kirk and his entities have agreed to certain "stand still" provisions. Both parties will file the definitive settlement agreement with the SEC shortly and Scios will be supplementing its proxy statement to add Mr. Kirk as a nominee to its Board. Scios, Inc. Scios is a biopharmaceutical company engaged in the discovery, development, and commercialization of novel human therapeutics. Scios has commercial or research and development relationships with Chiron Corporation, The DuPont Pharmaceuticals Company, Eli Lilly and Company, GenVec Inc., Kaken Pharmaceutical Co., Ltd., and Novo Nordisk A/S of Denmark. Scios' Psychiatric Sales and Marketing Division successfully markets seven psychiatric products, including co-promotion arrangements with Janssen Pharmaceutica's Risperdal(R) (risperidone) and SmithKline Beecham's Paxil(R) (paroxetine hydrochloride). Additional information on Scios is available at its web site located at www.sciosinc.com and in the Company's various filings with the Securities and Exchange Commission. -- end -- EX-99.2 3 PROXY SUPPLEMENT [SCIOS LOGO] SCIOS INC. 820 WEST MAUDE AVENUE SUNNYVALE, CA 94086 ------------------------------------------------------------- SUPPLEMENT TO PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS FEBRUARY 28, 2000 ------------------------------------------------------------- GENERAL Scios Inc., a Delaware corporation (the "Company"), hereby supplements its proxy statement dated January 20, 2000 (the "Scios Proxy Statement") for its Annual Meeting of Stockholders to be held at the Company's office located at 749 North Mary Avenue, Sunnyvale, California 94086 at 9:00 a.m. on February 28, 2000 and any adjournment or postponement of the annual meeting. Enclosed with this Supplement is a new GOLD proxy card for use by stockholders in voting their shares of Common Stock at the annual meeting. AS INDICATED BELOW, UNDER A RECENTLY-SIGNED SETTLEMENT AGREEMENT THE BOARD OF DIRECTORS HAS ADDED MR. RANDAL J. KIRK AS A BOARD NOMINEE FOR ELECTION AT THE ANNUAL MEETING AND IT IS IMPORTANT THAT STOCKHOLDERS COMPLETE AND RETURN THE ENCLOSED NEW GOLD PROXY CARD TO ENSURE THAT THEIR SHARES ARE VOTED AS TO ALL EIGHT NOMINEES. Neither the February 28, 2000 date of the annual meeting, nor the January 11, 2000 record date for determining stockholders entitled to vote at the annual meeting, have changed. Capitalized terms used but not defined in this Supplement have the meanings given to them in the Scios Proxy Statement. SETTLEMENT AGREEMENT; TERMINATION OF PROXY CONTEST; ADDITION OF MR. KIRK AS A BOARD NOMINEE On January 31, 2000, the Company and the Kirk Group entered into a Settlement Agreement (the "Settlement Agreement") which ended the proxy contest between the parties relating to the election of directors at the annual meeting. Among other things, the Settlement Agreement provides for Mr. Kirk to be added to the Board's slate of nominees for election to the Board at the annual meeting (see "PROPOSAL NO. 1 - Election of Directors" below). THE COMPANY HAS FILED THE SETTLEMENT AGREEMENT AS AN EXHIBIT TO A CURRENT REPORT ON FORM 8-K DATED FEBRUARY 1, 2000. THE FOLLOWING SUMMARY OF THE SETTLEMENT AGREEMENT IS QUALIFIED BY THE FULL TEXT OF THAT DOCUMENT. Under the Settlement Agreement, Mr. Kirk has been added to the Board's slate of nominees for election to a one-year term at this year's annual meeting, increasing the total number of Board nominees to eight (including the seven existing nominees of the Board, who are all current members of the Board). The Board has agreed to recommend the election of all eight nominees. The Kirk Group has withdrawn its nomination of Mr. Kirk and six other Board candidates and has agreed to discontinue all efforts (direct and indirect) to solicit votes for its nominees or otherwise to pursue the nomination. The Settlement Agreement provides that the Kirk Group will vote its Company shares in favor of the Board's nominees and against the removal of any director, and not pursue any unsolicited acquisition attempts or engage in any proxy contest, for a specified period (the "Term"). The length of the Term will depend on whether Mr. Kirk is elected at this year's annual meeting and, if he is, on whether the Board chooses to re-nominate him for next year's annual meeting. If Mr. Kirk is not elected at this year's annual meeting, the Term will expire at the conclusion of that meeting. If he is elected at that meeting, the Term will expire at the earliest to occur of: o Mr. Kirk's resignation from the Board within 15 days of the Board deciding, at a meeting required to be held no later than 90 days before next year's annual meeting, that he will not be re-nominated at that meeting, in which event the provisions of the Company's Bylaws requiring advance notice to be given, by a specified date, of a stockholder's intention to nominate directors, or propose other business, at an annual meeting of stockholders (the "Advance Notice Bylaws") will be waived to the extent necessary to permit any or all of the members of the Kirk Group (but no other person) to nominate one or more of their own candidates for election to the Board at next year's annual meeting; o the conclusion of next year's annual meeting if Mr. Kirk is re-nominated for election at that meeting but is not elected; or 2 o the later of (i) the 30th day prior to the deadline established by the Advance Notice Bylaws for nominations of candidates for election to the Board at the 2002 annual meeting or (ii) the date of Mr. Kirk's resignation from the Board, but in no event beyond the conclusion of that meeting. In addition, during the Term (or until Mr. Kirk resigns from the Board before the end of the Term, if he is elected), the Kirk Group: o must vote all of its Company shares on all matters other than the election or removal of directors either (as it chooses in its sole discretion) in accordance with the recommendation of a majority of the Board or in the same proportion as shares held by the other stockholders are voted; o may not increase its aggregate ownership of Company shares above 7.2% and must effect all purchases in compliance with all then-applicable Company policies regarding compliance with the federal securities laws and transactions in Company voting securities by members of the Board and their affiliates (the "Company Policies"); and o must give the Company prior notice if it intends to dispose of any of its Company shares (except that open-market sales of less than 1%, in the aggregate, in any 90-day period are not subject to this notice requirement) and must effect all sales in compliance with the Company Policies. The Settlement Agreement contains certain other provisions, including restrictions on public announcements, mutual releases of claims in connection with the proxy contest and related covenants not to sue, certain representations and warranties, and the Company's agreement to reimburse 50% of certain of the Kirk Group's actual documented out-of-pocket costs in connection with the proxy contest. In addition, the Company has agreed that, without Mr. Kirk's prior consent (not to be unreasonably withheld), it will not change the date of this year's annual meeting, hold next year's annual meeting later than June 1, 2001, or amend the Advance Notice Bylaws during the Term. The Settlement Agreement permits Mr. Kirk to exercise his rights, and fulfill his obligations, as a member of the Board while he is serving on it, and to make confidential proposals to the Board, without violating any of the provisions summarized above. PROPOSAL NO. 1 - ELECTION OF DIRECTORS The Company refers you to the section of the Scios Proxy Statement captioned "PROPOSAL NO. 1 - Election Of Directors" for information about the seven current members of the Board who have previously been nominated by the Board for re-election at the annual meeting. 3 In view of Mr. Kirk's addition as an eighth nominee, and pursuant to the procedure set forth in the Company's Certificate of Incorporation, the number of directors (which had been reduced to seven to reflect the longstanding retirement plans of one of the current Directors) has been changed back to eight and a Board of eight (8) Directors will be elected at the annual meeting. The term of office of each person so elected as a Director will continue until the next annual meeting or until a successor has been elected. Unless otherwise instructed, the proxy holders will vote the new GOLD proxy cards received by them for the eight nominees. HOWEVER, IF A STOCKHOLDER DOES NOT RETURN THE ENCLOSED NEW GOLD PROXY CARD (WHICH CONTAINS THE NAMES OF ALL EIGHT NOMINEES, INCLUDING MR. KIRK), THAT STOCKHOLDER'S SHARES CANNOT BE COUNTED IN THE ELECTION OF MR. KIRK BUT ONLY IN THE ELECTION OF THE OTHER SEVEN NOMINEES, WHETHER OR NOT THE STOCKHOLDER PREVIOUSLY RETURNED A WHITE PROXY CARD TO THE KIRK GROUP. THE WHITE PROXY CARD IS NO LONGER VALID FOR USE AT THE ANNUAL MEETING. The candidates receiving a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote will be elected. Each person nominated for election, (including Mr. Kirk) has agreed to serve if elected, and management has no reason to believe that any nominee will be unable to serve. Under the Advance Notice Bylaws, the deadline for nominating candidates for election to the Board, or submitting other business, at the annual meeting has passed. Accordingly, and because the Kirk Group has withdrawn its nomination of its candidates for election to the Board, under the Advance Notice Bylaws only the Board's eight nominees may be nominated for election at the annual meeting. Since the Kirk Group has agreed to vote its shares in favor of all eight nominees, and in light of the fact that a plurality of the votes cast for each nominee will elect that nominee providing a quorum is present (which requires the presence, in person or by proxy, of a majority of the shares outstanding on the record date), all eight nominees are expected to be elected. The following information has been provided by Mr. Kirk for inclusion in this Supplement with respect to his candidacy for election as a Board nominee. "Mr. Kirk's full name is Randal J. Kirk. He is 45 years of age. He beneficially owns 2,000,000 shares of Common Stock, or approximately 5.2% of the outstanding Common Stock (see note (4) to the table appearing in the Scios Proxy Statement under the caption "SECURITY OWNERSHIP OF MANAGEMENT AND PRINCIPAL STOCKHOLDERS"). He has served as the Managing Director of Third Security, LLC (an investment banking firm) since 1999. In addition, he currently serves in the following capacities: Chairman of Lotus Biochemical Corporation (a pharmaceutical company) since 1996; Manager of New River Management Company, L.L.C. (an investment holding company) since 1996; Chairman of BCCX, Inc. (a clinical laboratory management company) since 4 1998; Chairman of SFR, LLC (a real estate investment company) since 1998; Chairman of Clinical Chemistry Holdings, Inc. (a diagnostic instrumentation and supplies company) since 1999; Chairman of Biopop Integration Group, Inc. (a systems integration company) since 1999; and Manager of Zhong Mei, LLC (an investment holding company) since 1999. Previously, he served as Chairman of General Injectables & Vaccines, Inc. (a pharmaceutical distributor) between 1994 and 1998 and as Chairman and Chief Executive Officer of Biological & Popular Culture, Inc. (a holding company) between 1996 and 1998." THE BOARD OF DIRECTORS HOPES THAT STOCKHOLDERS WILL ATTEND THIS MEETING. WHETHER OR NOT YOU PLAN TO ATTEND, YOU ARE ASKED TO COMPLETE, SIGN AND RETURN THE ENCLOSED NEW GOLD PROXY CARD IN THE ACCOMPANYING ENVELOPE (WHICH IS POSTAGE PRE-PAID IF MAILED IN THE UNITED STATES). STOCKHOLDERS WHO ATTEND THE MEETING MAY VOTE THEIR SHARES PERSONALLY EVEN THOUGH THEY HAVE SENT IN THEIR PROXIES. PLEASE NOTE, HOWEVER, THAT IF YOUR SHARES ARE HELD OF RECORD BY A BROKER, BANK OR OTHER NOMINEE AND YOU WISH TO VOTE AT THE MEETING, YOU MUST OBTAIN FROM THE RECORD HOLDER A PROXY ISSUED IN YOUR NAME. By Order of the Board of Directors JOHN H. NEWMAN Secretary February 1, 2000 5 EX-99.3 4 FORM OF REVISED PROXY CARD [FORM OF REVISED PROXY CARD] NEW GOLD PROXY SCIOS INC. Annual Meeting of Stockholders Monday, February 28, 2000 This Proxy is Solicited on Behalf of the Board of Directors. The undersigned hereby appoints Richard B. Brewer and John H. Newman, or either of them, each with full power of substitution, as proxies of the undersigned, to attend the Annual Meeting of Stockholders of Scios, Inc., to be held at the offices of the Company, 749 North Mary Avenue, Sunnyvale, CA 94086 on February 28, 2000 at 9:00 a.m. and at any adjournments or postponement thereof, to vote the number of shares the undersigned would be entitled to vote if personally present, and to vote in their discretion upon any other business that may properly come before the meeting. THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN. IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED FOR PROPOSALS 1 AND 2. CONTINUED AND TO BE SIGNED ON REVERSE SIDE NEW GOLD PROXY X PLEASE MARK VOTES AS IN THIS EXAMPLE. The Board of Directors recommends a vote "FOR" Proposals 1 and 2. 1. ELECTION OF DIRECTORS: NOMINEES: Samuel H. Armacost Richard B. Brewer Randal J. Kirk Donald B. Rice Charles A. Sanders Solomon H. Snyder Burton E. Sobel Eugene L. Step FOR ALL NOMINEES WITHHOLD ALL NOMINEES To withhold your vote on any nominee(s), write their name(s) below: ___________________________________________________________________ 2. To ratify the selection of PricewaterhouseCoopers LLP as the Company's independent auditors for Fiscal 2000. FOR AGAINST ABSTAIN DATE:_______________________________________________________ SIGNATURE:__________________________________________________ TITLE OR AUTHORITY:_________________________________________ SIGNATURE (IF JOINT):_______________________________________ Please sign exactly as name appears. When shares are held by joint tenants, both should sign. When signing as attorney, as executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporate name by President or other authorized officer. If a partnership, please sign in partnership name by authorized person. PLEASE SIGN, DATE, AND RETURN THIS PROXY IN THE ENVELOPE PROVIDED, WHICH REQUIRES NO POSTAGE IF MAILED IN THE UNITED STATES. -----END PRIVACY-ENHANCED MESSAGE-----