-----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, PxYwvLGGAdDl5sX1/+DxEDemTotYCB5zRi7BogwZNRfM/SK2j2YsJPdD3pKgdV8n +4jHgPeWeseulqFirgQmOw== 0000891618-98-004575.txt : 19981026 0000891618-98-004575.hdr.sgml : 19981026 ACCESSION NUMBER: 0000891618-98-004575 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19981023 EFFECTIVENESS DATE: 19981023 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABGENIX INC CENTRAL INDEX KEY: 0001052837 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 943248826 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-66055 FILM NUMBER: 98729940 BUSINESS ADDRESS: STREET 1: 7601 DUMBARTON CIRCLE CITY: FREMONT STATE: CA ZIP: 94555 BUSINESS PHONE: 5106086500 MAIL ADDRESS: STREET 1: 7601 DUMBARTON CIRCLE CITY: FREMONT STATE: CA ZIP: 94555 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on October 23, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------- ABGENIX, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) --------------------------- DELAWARE 2836 94-3248826 (STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
7601 DUMBARTON CIRCLE FREMONT, CA 94555 (510) 608-6500 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES) 1996 INCENTIVE STOCK PLAN 1998 EMPLOYEE STOCK PURCHASE PLAN 1998 DIRECTOR OPTION PLAN (FULL TITLE OF THE PLANS) --------------------------- R. SCOTT GREER PRESIDENT AND CHIEF EXECUTIVE OFFICER ABGENIX, INC. 7601 DUMBARTON CIRCLE FREMONT, CA 94555 (510) 608-6500 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) --------------------------- Copies to: MARIO M. ROSATI, ESQ. CHRIS F. FENNELL, ESQ. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CA 94304 (650) 493-9300 --------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable after the effective date of this Registration Statement. 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, check the following box. |X| --------------------------- 2 CALCULATION OF REGISTRATION FEE
==================================================================================================================================== AMOUNT PROPOSED PROPOSED TO BE MAXIMUM MAXIMUM TITLE OF EACH CLASS OF REGISTERED OFFERING PRICE AGGREGATE AMOUNT OF SECURITIES TO BE REGISTERED (SHARES) PER SHARE OFFERING PRICE REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------------------------------ 1996 Incentive Stock Plan Common Stock, $0.001 par value (currently outstanding options) (1)......... 1,689,627 $ 2.157 $ 3,644,525.44 $ 1,013.18 1996 Incentive Stock Plan Common Stock, $0.001 par value (options available for future grant) (2).... 864,192 $ 6.063 $ 5,239,596.10 $ 1,456.61 TOTAL 1996 STOCK PLAN SHARES REGISTERED 2,553,819 $ 8,884,121.54 $ 2,469.79 1998 Employee Stock Purchase Plan Common Stock, $0.001 par value (3).......... 250,000 $ 5.154 $ 1,288,387.50 $ 358.17 1998 Director Option Plan Common Stock, $0.001 par value (4).......... 250,000 $ 6.063 $ 1,515,750.00 $ 421.38 TOTAL REGISTRATION FEES $ 3,249.34 ============================================ ==================== ================ ================= ===================
================================================================================ (1) The Proposed Maximum Offering Price Per Share has been computed in accordance with Rule 457(h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee and is based upon the weighted average exercise price per share of approximately $2.157 as to 1,689,627 outstanding but unexercised options to purchase Common Stock under the 1996 Incentive Stock Plan (the "Currently Outstanding Options"). (2) The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rule 457(c) under the Securities Act of 1933 as to the remaining 864,192 shares of Common Stock authorized for issuance pursuant to the 1996 Incentive Stock Plan, solely for the purpose of calculating the registration fee. No options have been granted with respect to such shares. The computation is based upon the average of the high and low price of the Common Stock as reported on the Nasdaq National Market on October 5, 1998 because the price at which the options to be granted in the future may be exercised is not currently determinable. (3) The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rule 457(h) under the Securities Act of 1933 solely for the purpose of calculating the registration fee. The computation is based upon 85% (see explanation in following sentence) of the average of the high and low price of the Common Stock as reported on the Nasdaq National Market on October 5, 1998 because the price at which the options to be granted in the future may be exercised is not currently determinable. Pursuant to the 1998 Employee Stock Purchase Plan, which plan is incorporated by reference herein, the Purchase Price of a share of Common Stock shall mean an amount equal to 85% of the Fair Market Value of a share of Common Stock on the Enrollment Date or the Exercise Date, whichever is lower. (4) The Proposed Maximum Offering Price Per Share has been estimated in accordance with Rule 457(c) under the Securities Act of 1933 solely for the purpose of calculating the registration fee. No options have been granted with respect to such shares. The computation is based upon the average of the high and low price of the Common Stock as reported on the Nasdaq National Market on October 5, 1998 because the price at which the options to be granted in the future may be exercised is not currently determinable. 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INFORMATION INCORPORATED BY REFERENCE. The following documents and information previously filed with the Securities and Exchange Commission are hereby incorporated by reference: (a) The Registrant's Prospectus, dated July 2, 1998, filed pursuant to Rule 424(b)(1) under the Securities Act of 1933 on July 2, 1998 and the supplement thereto, dated July 15, 1998, filed pursuant to Rule 424(b)(3) of the Securities Act of 1933 on July 15, 1998. (b) The Registrant's Current Report on Form 8-K filed pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the "Exchange Act") on July 17, 1998. (c) The Registrant's Quarterly Report on Form 10-Q filed pursuant to Section 13(a) of the Exchange Act on August 17, 1998. (d) The description of the Registrant's Common Stock contained in the Registration Statement on Form 8-A filed pursuant to Section 12 of the Exchange Act on May 5, 1998. (e) All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing 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 the Registration Statement and to be part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant has adopted provisions in its Certificate of Incorporation that eliminate the personal liability of its directors and officers for monetary damages arising from a breach of their fiduciary duties in certain circumstances to the fullest extent permitted by law and authorizes the Registrant to indemnify its directors and officers to the fullest extent permitted by law. Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or rescission. The Registrant's Bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent permitted by the General Corporation Law of Delaware, including circumstances in which indemnification is otherwise discretionary under Delaware law. Section 145 of the General Corporation Law of Delaware provides for the indemni fication of officers, directors and other corporate agents in terms sufficiently broad to indemnify such persons, under certain circumstances, for certain liabilities (including reimbursement of expenses incurred) arising under the Securities II-1 4 Act of 1933 (the "Securities Act"). The Registrant has entered into indemnification agreements to such effect with its officers and directors containing provisions which are in some respects broader than the specific indemnification provisions contained in the General Corporation Law of Delaware. The indemnification agreements may require the Company, among other things, to indemnify such officers and directors against certain liabilities that may arise by reason of their status or service as directors or officers (other than liabilities arising from willful misconduct of a culpable nature) and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibits listed on the accompanying Index to Exhibits are filed as part hereof, or incorporated by reference into, this Registration Statement. (See Exhibit Index below). 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 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. (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 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 an 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 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 Act and will be governed by the final adjudication of such issue. II-2 5 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 Fremont, State of California on October 23, 1998. ABGENIX, INC. By: /s/ R. SCOTT GREER ------------------------------------- R. Scott Greer President and Chief Executive Officer II-3 6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints R. Scott Greer and Kurt W. Leutzinger, jointly and severally, his or her attorneys-in-fact, each with the power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may 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 date indicated.
SIGNATURE TITLE DATE - ----------------------------------------- ---------------------------------------------- ------------------------- /S/ R. SCOTT GREER President, Chief Executive Officer and October 23, 1998 - ----------------------------------------- (R. Scott Greer) Director (Principal Executive Officer) /S/ KURT LEUTZINGER Vice President, Finance and Chief October 23, 1998 - ----------------------------------------- (Kurt Leutzinger) Financial Officer (Principal Financial and Accounting Officer) /S/ STEPHEN A. SHERWIN Chairman of the Board of Directors October 23, 1998 - ----------------------------------------- (Stephen A. Sherwin) /S/ M. KATHLEEN BEHRENS, PH.D. Director October 23, 1998 - ----------------------------------------- (M. Kathleen Behrens, Ph.D.) /S/ RAJU S. KUCHERLAPATI, PH.D. Director October 23, 1998 - ----------------------------------------- (Raju S. Kucherlapati, Ph.D.) /S/ MARK B. LOGAN Director October 23, 1998 - ----------------------------------------- (Mark B. Logan) /S/ JOSEPH E. MAROUN Director October 23, 1998 - ----------------------------------------- (Joseph E. Maroun)
* The employee benefit plans being registered pursuant to this Registration Statement are subject to administration by the Board of Directors of the Registrant. II-4 7 INDEX TO EXHIBITS
Exhibit Number Exhibit Document - -------------------------- --------------------------------------------------------------------- 4.1* 1996 Incentive Stock Plan 4.2* 1998 Employee Stock Purchase Plan 4.3* 1998 Director Option Plan 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered (Counsel to the Registrant) 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (see page II-4)
- --------------------------- * Incorporated by reference to Exhibits 10.2, 10.3 and 10.4, respectively, of the Company's Registration Statement on Form S-1 (File No. 333-49415), effective July 2, 1998. EX-5.1 2 OPINION OF WILSON SONSINI GOODRICH & ROSATI 1 [LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI] EXHIBIT 5.1 October 23, 1998 Abgenix, Inc. 7601 Dumbarton Circle Fremont, CA 94555 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by you with the Securities and Exchange Commission on or about October 23, 1998 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of the 1996 Incentive Stock Plan (as to 2,553,819 shares), the 1998 Employee Stock Purchase Plan (as to 250,000 shares) and the 1998 Director Option Plan (as to 250,000 shares) (collectively, the "Plans" and the "Shares" as appropriate). As legal counsel for Abgenix, Inc., we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the issuance and sale of the Shares pursuant to the Plans. It is our opinion that the Shares, when issued and sold in the manner described in the Plans and pursuant to the agreement that accompanies each grant under the Plans, will be legally and validly issued, fully-paid and non-assessable. We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the Registration Statement and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ WILSON SONSINI GOODRICH & ROSATI --------------------------------- EX-23.1 3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS 1 EXHIBIT 23.1 [LETTERHEAD OF ARTHUR ANDERSEN LLP] CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 1996 Incentive Stock Plan, the 1998 Employee Stock Purchase Plan and the 1998 Director Option Plan of Abgenix, Inc. of our report dated January 23, 1998 with respect to the financial statements of Abgenix, Inc. for the year ended December 31, 1997 included in the Registration Statement on Form S-1 (No. 333-49415) and related Prospectus dated July 2, 1998 filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Palo Alto, CA October 21, 1998 -----END PRIVACY-ENHANCED MESSAGE-----