-----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, C7JMmcDErNRJGUZQcsnq8vBa6rOk8M2fP1ESeQcueTzePKuRZmQaz/A6eQ8ftuEW Umyr1ykP4cWx0gDXHK4ujQ== 0000912057-01-005876.txt : 20010223 0000912057-01-005876.hdr.sgml : 20010223 ACCESSION NUMBER: 0000912057-01-005876 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010214 EFFECTIVENESS DATE: 20010214 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: 333-55622 FILM NUMBER: 1545772 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 a2038769zs-8.txt S-8 As filed with the Securities and Exchange Commission on February 14, 2001. 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 94-3248826 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 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) ABGENIX, INC. 1999 NONSTATUTORY STOCK OPTION PLAN (Full title of the plan) R. Scott Greer 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) COPY TO: Peter T. Healy, Esq. O'Melveny & Myers LLP 275 Battery Street, Suite 2600 San Francisco, California 94111 CALCULATION OF REGISTRATION FEE
================================ ================= ======================= ======================== ================= Proposed maximum Proposed maximum Amount of Title of securities being Amount to be offering price per aggregate offering registration registered registered (1) share (2) price (2) fee (2) - -------------------------------- ----------------- ----------------------- ------------------------ ----------------- Common Stock, par value 3,000,000 $36.21875 $108,656,250 $27,165 $0.0001 per share Shares ================================ ================= ======================= ======================== =================
(1) This Registration Statement covers, in addition to the number of shares of Common Stock stated above, options and other rights to purchase or acquire the shares of Common Stock covered by the Prospectus and, pursuant to Rule 416(c) under the Securities Act of 1933, an indeterminate number of shares which by reason of certain events specified in the Plan may become subject to the 1999 Nonstatutory Stock Option Plan (the "Plan"). (2) Pursuant to Rule 457(h), because the price of the shares to be issued pursuant to the Plan is not currently determinable, the maximum offering price, per share and in the aggregate, and the registration fee were calculated based upon the average of the high ($37.4375) and low ($35.00) sale prices of Abgenix, Inc. Common Stock as reported on the Nasdaq National Market System on February 9, 2001 (which is a date within five business days of the date of filing of this Registration Statement). Pursuant to General Instruction E for registration statements on Form S-8, the contents of the Registration Statement on Form S-8 of Abgenix, Inc., a Delaware corporation, relating to the Abgenix, Inc. 1999 Nonstatutory Stock Option Plan, file number 333-90707, filed with the Securities and Exchange Commission (the "Commission") on November 10, 1999, are incorporated herein by reference. ================================================================================ EXPLANATORY NOTE On November 10, 1999, Abgenix, Inc. filed a Form S-8 to register the shares issuable under its 1999 Nonstatutory Stock Option Plan. On January 8, 2001, the Board of Directors of Abgenix, Inc. voted to increase the number of shares available for grant under the company's 1999 Nonstatutory Stock Option Plan. This registration statement is filed to register such additional shares. Pursuant to General Instruction E of Form S-8, much of the information that would otherwise be required in this filing is incorporated by reference to that earlier registration statement. No control shares reoffer prospectus was included in that filing, and none is included in this filing. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information specified in Part I of Form S-8 (plan information and registrant information) will be sent or given to optionees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents, which include the statement of availability required by Item 2 of Form S-8, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE Not required to be filed with this Registration Statement pursuant to General Instruction E for registration statements on Form S-8. ITEM 4. DESCRIPTION OF SECURITIES Not required to be filed with this Registration Statement pursuant to General Instruction E for registration statements on Form S-8. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Not required to be filed with this Registration Statement pursuant to General Instruction E for registration statements on Form S-8. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not required to be filed with this Registration Statement pursuant to General Instruction E for registration statements on Form S-8. 2 ITEM 8. EXHIBITS The following exhibits are filed as part of this Registration Statement:
Exhibit No. Description - ----------- ---------------------------------------------------------------------------------------- 4.1 Amendment to Abgenix, Inc. 1999 Nonstatutory Stock Option Plan, dated January 8, 2001 (increasing number of shares subject to the Plan) 5.1 Opinion of O'Melveny & Myers LLP (opinion re: legality) 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Counsel (included in Exhibit 5.1) 24.1 Power of Attorney (included on the signature page of this Registration Statement)
ITEM 9. UNDERTAKINGS Not required to be filed with this Registration Statement pursuant to General Instruction E for registration statements on Form S-8. 3 SIGNATURES Pursuant to the requirements of the Securities Act, 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 February 14, 2001. ABGENIX, INC. By: /s/ R. SCOTT GREER ----------------------------------------- R. Scott Greer Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints, jointly and severally, R. SCOTT GREER and KURT W. LEUTZINGER, and each of them, as his or her attorney-in-fact, with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and any and all registration statements filed pursuant to Rule 462 under the Securities Act of 1933, as amended, in connection with or related to the offering contemplated by this registration statement and its amendments, if any, and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by such attorney to any and all amendments to such registration statement. 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/ R. SCOTT GREER Chairman and Chief February 14, 2001 - ----------------------------------- Executive Officer (Principal R. Scott Greer Executive Officer) /s/ KURT W. LEUTZINGER Chief Financial Officer February 14, 2001 - ----------------------------------- (Controller and Principal Kurt W. Leutzinger Accounting Officer) /s/ STEVEN A. SHERWIN, M.D. - ----------------------------------- Director February 14, 2001 Steven A. Sherwin, M.D. /s/ M. KATHLEEN BEHRENS, Ph.D. - ----------------------------------- Director February 13, 2001 M. Kathleen Behrens, Ph.D. /s/ RAJU S. KUCHERLAPATI, Ph.D. - ----------------------------------- Director February 14, 2001 Raju S. Kucherlapati, Ph.D. /s/ MARK B. LOGAN - ----------------------------------- Director February 14, 2001 Mark B. Logan - ----------------------------------- Director February ___, 2001 Joseph E. Maroun
4 EXHIBIT INDEX Pursuant to Item 601(a)(2) of Regulation S-K, this exhibit index immediately precedes the exhibits.
Exhibit No. Description - ----------- ---------------------------------------------------------------------------------------- 4.1 Amendment to Abgenix, Inc. 1999 Nonstatutory Stock Option Plan, dated January 8, 2001 (increasing number of shares subject to the Plan) 5.1 Opinion of O'Melveny & Myers LLP (opinion re: legality) 23.1 Consent of Ernst & Young LLP, Independent Auditors 23.2 Consent of Counsel (included in Exhibit 5.1) 24.1 Power of Attorney (included on the signature page of this Registration Statement)
5 EX-4.1 2 a2038769zex-4_1.txt EXHIBIT 4.1 EXHIBIT 4.1 AMENDMENT TO THE ABGENIX, INC. 1999 NONSTATUTORY STOCK OPTION PLAN (THE "PLAN") APPROVED BY THE ABGENIX, INC. BOARD OF DIRECTORS ON JANUARY 8, 2001 IN ORDER TO INCREASE THE NUMBER OF OPTIONS AVAILABLE UNDER THE PLAN. [Note: The original 1.4 million shares authorized under the Plan increased to 5.6 million as a result of the two 2-for-1 stock splits in 2000. The total was then increased to 8.6 million by this Amendment.] Section 3 of the Plan is hereby amended by striking the reference to "1,400,000 Shares" and inserting in lieu thereof "8,600,000 Shares". EX-5.1 3 a2038769zex-5_1.txt EXHIBIT 5.1 Exhibit 5.1 February 14, 2001 Abgenix, Inc. 7601 Dumbarton Circle Fremont, CA 94555 RE: REGISTRATION STATEMENT ON FORM S-8 Ladies and Gentlemen: This opinion is delivered in our capacity as special counsel to Abgenix, Inc., a Delaware corporation (the "Company"), in connection with the Company's registration statement on Form S-8 (the "Registration Statement") to be filed on or around February 14, 2001, with the Securities and Exchange Commission relating to the registration under the Securities Act of 1933, as amended (the "Securities Act"), of 3,000,000 shares of common stock of the Company (the "Shares") for issuance under the Company's 1999 Nonstatutory Stock Option Plan (the "Plan"). In connection with rendering this opinion, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by the Company in connection with the sale and issuance of the Shares pursuant to the Plan. It is our opinion that, upon completion of the proceedings to be taken prior to issuance of the shares pursuant to the Prospectus constituting part of the Registration Statement on Form S-8 and upon completion of the proceedings being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares, when issued and sold in the manner referred to in the Plan and the agreements which accompany the Plan, and in accordance with the Company's Certificate of Incorporation, will be legally and validly issued, fully paid and nonassessable. We hereby 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 amendments thereto. The opinions expressed herein are limited to the laws of the United States of America and the General Corporation Law of the State of Delaware including the statutory provisions and also all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting such laws. Furthermore, the opinions presented in this letter are limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. This opinion letter is solely for the information and use of the Company, and it may not be distributed, relied upon for any purpose by any other person, quoted in whole or in part or otherwise reproduced in any document or filed with any other governmental agency without our express written consent. Lastly, in giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations promulgated thereunder by the Securities and Exchange Commission. Respectfully yours, /s/ O'MELVENY & MYERS LLP EX-23.1 4 a2038769zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Abgenix, Inc. 1999 Nonstatutory Stock Option Plan of our report dated January 28, 2000, with respect to the consolidated financial statements of Abgenix, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Palo Alto, California February 12, 2001 -----END PRIVACY-ENHANCED MESSAGE-----