-----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, Mys0j3tHf64Kg5193j5z/CALLxNCLJOd181+VSJPqrwvhntWZpAbjMEBlF5jltP8 0fSpAn5IvRmBGolLeD8wew== 0000927016-02-003745.txt : 20020726 0000927016-02-003745.hdr.sgml : 20020726 20020726104055 ACCESSION NUMBER: 0000927016-02-003745 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20020726 EFFECTIVENESS DATE: 20020726 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENOME THERAPEUTICS CORP CENTRAL INDEX KEY: 0000356830 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 042297484 STATE OF INCORPORATION: MA FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-97139 FILM NUMBER: 02711582 BUSINESS ADDRESS: STREET 1: 1OO BEAVER ST CITY: WALTHAM STATE: MA ZIP: 02453 BUSINESS PHONE: 7813982300 MAIL ADDRESS: STREET 1: 100 BEAVER STREET CITY: WALTHAM STATE: MA ZIP: 02453 FORMER COMPANY: FORMER CONFORMED NAME: COLLABORATIVE RESEARCH INC DATE OF NAME CHANGE: 19920703 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on July 26, 2002 Registration No. 333-_______ - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------------- GENOME THERAPEUTICS CORP. (Exact name of registrant as specified in its charter) Massachusetts 04-2297484 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 100 Beaver Street, Waltham, Massachusetts 02453 (Address of principal executive offices, including zip code) ------------------------- Genome Therapeutics Corp. Employee Stock Purchase Plan (Full title of the plan) ------------------------- Stephen Cohen With a copy to: Genome Therapeutics Corp. Patrick O'Brien, Esq. 100 Beaver Street Ropes & Gray Waltham, Massachusetts 02453 One International Place (781) 398-2300 Boston, Massachusetts 02110-2624 (617) 951-7000 (Name, address and telephone number, including area code, of agent for service) ------------------------- CALCULATION OF REGISTRATION FEE
================================================================================================================ Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of Securities to be Registered Registered Offering Price Per Aggregate Offering Registration Share(1) Price(1) Fee - ---------------------------------------------------------------------------------------------------------------- Common Stock, $.10 250,000 shares $1.92 $480,000.00 $44.16 par value per share(2) ================================================================================================================
(1) The offering price has been estimated solely for the purpose of determining the registration fee pursuant to Rule 457(c) and (h) on the basis of the average of the high and low prices of Genome Therapeutics Corp.'s common stock, par value $.10 per share, as reported by the National Association of Securities Dealers Automated Quotation system on July 23, 2002. (2) The number of securities being carried forward from the Registrant's Registration Statement on Form S-8 (File No. 333-39390) is 250,000 and the amount of the filing fee previously paid with respect to these securities was $1,728.54. Exhibit Index can be found on page 5. This is page 1 of 11 pages. - -------------------------------------------------------------------------------- 1 The contents of the Registration Statement on Form S-8 (File No. 333-39390) previously filed with the Securities and Exchange Commission are hereby incorporated by reference in this Registration Statement. This Registration Statement is being filed for the sole purpose of increasing the number of shares registered under the Genome Therapeutics Corp. Employee Stock Purchase Plan, as amended, by 250,000 shares. ITEM 8. Exhibits Exhibit 4(a) The Company's Employee Stock Purchase Plan, as amended. Exhibit 5 Opinion of Ropes & Gray. Exhibit 23(a) Consent of Ropes & Gray (contained in Exhibit 5). Exhibit 23(b) Consent of Arthur Anderson LLP (omitted pursuant to Rule 437(a)).* Exhibit 24 Power of Attorney (included as part of the signature pages to this Registration Statement). * After reasonable efforts, we have not been able to obtain the consent of Arthur Anderson LLP to the incorporation in this Registration Statement of their report with respect to our consolidated financial statements, which appeared in our Annual Report on Form 10-K/A for the year ended December 31, 2001. Under these circumstances, Rule 437(a) under the Securities Act of 1933, as amended, permits this Registration Statement to be filed without a written consent from Arthur Anderson LLP. Because Arthur Anderson LLP has not consented to the incorporation by reference of their report into this Registration Statement, you will not be able to assert claims against Arthur Anderson LLP under Section 11 of the Securities Act of 1933, as amended, for any untrue statement of a material fact contained in our consolidated financial statements for the year ended December 31, 2001 or any omissions to state a material fact required to be stated therein. 2 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that its 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 Waltham, Commonwealth of Massachusetts, on this 26th day of July, 2002. GENOME THERAPEUTICS CORP. /s/ STEVEN M. RAUSCHER ------------------------------------ Name: Steven M. Rauscher Title: President and Chief Executive Officer 3 KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Steven M. Rauscher and Stephen Cohen and each of them singly, with full power to act without the other, his true and lawful attorneys-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 or all amendments to this registration statement, including post-effective amendments, 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 and about the premises, 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 substitutes 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/ ROBERT J. HENNESSEY Director and July 26, 2002 - ------------------------------------------ Chairman of the Board Robert J. Hennessey /s/ STEVEN M. RAUSCHER Director, President and July 26, 2002 - ------------------------------------------ Chief Executive Officer Steven M. Rauscher /s/ STEPHEN COHEN Chief Financial Officer, July 26, 2002 - ------------------------------------------ Senior Vice President and Stephen Cohen Principal Financial Officer /s/ MARC GARNICK Director July 26, 2002 - ------------------------------------------ Marc Garnick /s/ PHILIP LEDER Director July 26, 2002 - ------------------------------------------ Philip Leder /s/ LAWRENCE LEVY Director July 26, 2002 - ------------------------------------------ Lawrence Levy /s/ NORBERT RIEDEL Director July 26, 2002 - ------------------------------------------ Norbert Riedel /s/ DAVID K. STONE Director July 26, 2002 - ------------------------------------------ David K. Stone
4 EXHIBIT INDEX Number Title of Exhibit Page - ------ ---------------- ---- 4(a) Employee Stock Purchase Plan 6 5 Opinion of Ropes & Gray 11 23(a) Consent of Ropes & Gray Contained in Exhibit 5 23(b) Consent of Arthur Anderson LLP Omitted pursuant to Rule 437(a)* 24 Power of Attorney Included as part of the Signatures to this Registration * After reasonable efforts, we have not been able to obtain the consent of Arthur Anderson LLP to the incorporation in this Registration Statement of their report with respect to our consolidated financial statements, which appeared in our Annual Report on Form 10-K/A for the year ended December 31, 2001. Under these circumstances, Rule 437(a) under the Securities Act of 1933, as amended, permits this Registration Statement to be filed without a written consent from Arthur Anderson LLP. Because Arthur Anderson LLP has not consented to the incorporation by reference of their report into this Registration Statement, you will not be able to assert claims against Arthur Anderson LLP under Section 11 of the Securities Act of 1933, as amended, for any untrue statement of a material fact contained in our consolidated financial statements for the year ended December 31, 2001 or any omissions to state a material fact required to be stated therein. 5
EX-4.(A) 3 dex4a.txt EMPLOYEE STOCK PURCHASE PLAN EXHIBIT 4(a) GENOME THERAPEUTICS CORP. ------------------------- EMPLOYEE STOCK PURCHASE PLAN ---------------------------- (As amended through June 25, 2002) SECTION 1. PURPOSE OF PLAN --------------- The Genome Therapeutics Corp. Employee Stock Purchase Plan, as amended June 25, 2002 (the "Plan"), is intended to provide a method by which eligible employees of Genome Therapeutics Corp. (the "Company") may use voluntary, systematic payroll deductions to purchase shares of Common Stock, $.10 par value of the Company (such Common Stock being hereafter referred to as "Stock") and thereby acquire an interest in the future of the Company. The purpose of the Plan is to assist the Company in retaining high quality employees and to expand employee stock ownership. The Plan is intended to qualify under Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"), and shall be construed accordingly. SECTION 2. OPTIONS TO PURCHASE STOCK ------------------------- Under the Plan, there is available an aggregate of not more than 500,000 shares of Stock (subject to adjustment as provided in Section 15) for sale pursuant to the exercise of options ("Options") granted under the Plan to employees of the Company ("Employees") who meet the eligibility requirements set forth in Section 3 hereof ("Eligible Employees"). The Stock to be delivered upon exercise of Options under the Plan may be either shares of authorized but unissued Stock or shares of reacquired Stock, as the Board of Directors of the Company (the "Board of Directors") may determine. SECTION 3. ELIGIBLE EMPLOYEES ------------------ Except as otherwise provided below, each Employee who, on the first day of an Option Period (as defined below) following his or her employment by the Company, is scheduled to work at least 20 hours per week and is expected to be employed by Company for at least five months per year will be eligible to participate in the Plan (a) Any Employee who immediately after the grant of an Option would own (or pursuant to Section 423(b)(3) of the Code would be deemed to own) stock possessing 5% or more of the total combined voting power or value of all classes of stock of the Company, as defined in Section 424 of the Code, will not be eligible to receive an Option to purchase Stock pursuant to the Plan. (b) No Employee will be granted an Option under the Plan that would permit his or her rights to purchase shares of stock under all employee stock purchase plans of the Company to accrue at a rate which exceeds $25,000 in fair market value of such stock (determined at the time the Option is granted) for each calendar year during which any such Option granted to such Employee is outstanding at any time, as provided in Section 423 of the Code. 6 SECTION 4. METHOD OF PARTICIPATION ----------------------- The first stock option period (the "Initial Option Period") for which Options may be granted hereunder shall commence on March 1, 2001 and end on March 30, 2001. After the Initial Option Period, the periods for which Options may be granted hereunder shall be from January 1 to March 30 and from July 1 to December 31 of each year. Such periods, together with the Initial Option Period, shall be referred to as the "Option Periods." Each person who will be an Eligible Employee on the first day of any Option Period may elect to participate in the Plan by executing and delivering, at least 15 days prior to such day, a payroll deduction authorization in accordance with Section 5. Such Employee will thereby become a participant ("Participant") on the first day of such Option Period and will remain a Participant until his or her participation is terminated as provided in the Plan. SECTION 5. PAYROLL DEDUCTION ----------------- The payroll deduction authorization will request withholding at a rate (in whole percentages) of not less than 1% nor more than 15% from the Participant's Compensation by means of substantially equal payroll deductions over the Option Period from payroll periods ending in the Option Period. For purposes of the Plan, "Compensation" means all compensation paid to the Participant by the Company and currently includable in his or her income, including bonuses, commissions and other amounts includible in the definition of compensation provided in the Treasury Regulations promulgated under Section 415 of the Code, plus any amount that would be so included but for the fact that it was contributed to a qualified plan pursuant to an elective deferral under Section 401(k) of the Code, but not including payments under stock option plans and other employee benefit plans or any other amounts excluded from the definition of compensation provided in the Treasury Regulations under Section 415 of the Code. Once per quarter, a Participant may increase or decrease the withholding rate of his or her payroll deduction authorization by written notice delivered to the Company at least 15 days prior to the first day of the Option Period as to which the change is to be effective. All amounts withheld in accordance with a Participant's payroll deduction authorization will be credited to a withholding account for such Participant. SECTION 6. GRANT OF OPTIONS ---------------- Each person who is a Participant on the first day of an Option Period will as of such day be granted an Option for such Period. Such Option will be for the number of whole shares of Stock to be determined by dividing (i) the balance in the Participant's withholding account on the last day of the Option Period, by (ii) the purchase price per share of the Stock determined under Section 7; provided, that the maximum number of shares that may be purchased by any Participant for the Initial Option Period shall be that number of shares which had a fair market value of $8,333.33 on the first day of the Initial Option Period; provided, further, that the maximum number of shares that may be purchased by any Participant for any subsequent Option Period shall be that number of shares which had a fair market value of $12,500 on the first day of the Option Period. The Company will reduce, on a substantially proportionate basis, the number of shares of Stock purchasable by each Participant upon exercise of his or her Option for an Option Period in the event that the number of shares then available under the Plan is insufficient. 7 SECTION 7. PURCHASE PRICE -------------- The purchase price of Stock issued pursuant to the exercise of an Option will be 85% of the fair market value of the Stock at (a) the time of grant of the Option or (b) the time at which the Option is deemed exercised, whichever is less. Fair market value will mean the Closing Price of the Stock. The "Closing Price" of the Stock on any business day will be the last sale price, regular way, with respect to such Stock, or, in case no such sale takes place on such day, the average of the closing bid and asked prices, regular way, with respect to such Stock, in either case as reported on the NASDAQ Stock Market ("NASDAQ"); or, if such Stock is not listed or admitted to trading on NASDAQ, as reported on such other principal national securities exchange on which such Stock is listed or admitted to trading. SECTION 8. EXERCISE OF OPTIONS ------------------- If any Employee is a Participant in the Plan on the last business day of an Option Period, he or she will be deemed to have exercised the Option granted to him or her for that period. Upon such exercise, the Company will apply the balance of the Participant's withholding account to the purchase of the number of whole shares of Stock determined under Section 6 and as soon as practicable thereafter will issue and deliver certificates for said shares to the Participant and will return to him or her the balance, if any, of his or her withholding account in excess of the total purchase price of the shares so issued; provided, that if the balance left in the account consists solely of an amount equal to the value of a fractional share it will be retained in the Account and carried over to the next Period. No fractional shares will be issued hereunder. Notwithstanding anything herein to the contrary, the Company's obligation to issue and deliver shares of Stock under the Plan will be subject to the approval required of any governmental authority in connection with the authorization, issuance, sale or transfer of said shares, to any requirements of any national securities exchange applicable thereto, and to compliance by the Company with other applicable legal requirements in effect from time to time. SECTION 9. INTEREST -------- No interest will be payable on withholding accounts. SECTION 10. CANCELLATION AND WITHDRAWAL --------------------------- A Participant who holds an Option under the Plan may at any time prior to exercise thereof under Section 8 cancel all or any part of his or her Options by written notice delivered to the Company. Upon such cancellation, the balance in the Participant's withholding account will be returned to the Participant. A Participant may terminate his or her payroll deduction authorization as of any date by written notice delivered to the Company and will thereby cease to be a Participant as of such date. Any Participant who voluntarily terminates his or her payroll deduction authorization prior to the last business day of an option period will be deemed to have canceled his or her Option. 8 SECTION 11. TERMINATION OF EMPLOYMENT ------------------------- Upon the termination of a Participant's service with the Company by reason of retirement or disability (permanent or temporary) or upon a Participant's leave of absence with the Company, such Participant, by written notice to the Company, may request that the balance of his or her withholding account be applied to the exercise of his or her Option as of the last day of the Option Period pursuant to Section 8 of the Plan. In the absence of such a written notice to the Company, subject to Section 12, upon the termination of a Participant's service with the Company for any reason, he or she will cease to be a Participant, and any Option held by him or her under the Plan will be deemed canceled, the balance of his or her withholding account will be returned, and he or she will have no further rights under the Plan. SECTION 12. DEATH OF PARTICIPANT -------------------- A Participant may file a written designation of beneficiary specifying who is to receive any stock and/or cash credited to the Participant under the Plan in the event of the Participant's death, which designation will also provide for the election by the Participant of either (i) cancellation of the Participant's Option upon his or her death, as provided in Section 10 or (ii) application as of the last day of the Option Period of the balance of the deceased Participant's withholding account at the time of death to the exercise of his or her Option, pursuant to Section 8 of the Plan. In the absence of a valid election otherwise, the death of a Participant will be deemed to effect a cancellation of his or her Option. A designation of beneficiary and election may be changed by the Participant at any time, by written notice. In the event of the death of a Participant and receipt by the Company of proof of the identity and existence at the Participant's death of a beneficiary validly designated by him or her under the Plan, the Company will deliver such stock and/or cash to which the beneficiary is entitled under the Plan to such beneficiary. In the event of the death of a Participant and in the absence of a beneficiary validly designated under the Plan who is living at the time of such Participant's death, the Company will deliver such stock and/or cash to the executor or administrator of the estate of the Participant, if the Company is able to identify such executor or administrator. If the Company is unable to identify such administrator or executor, the Company in its discretion may deliver such stock and/or cash to the spouse or to any one or more dependents of a Participant as the Company may determine. No beneficiary will, prior to the death of the Participant by whom he or she has been designated, acquire any interest in the stock or cash credited to the Participant under the Plan. SECTION 13. EQUAL RIGHTS; PARTICIPANT'S RIGHTS NOT TRANSFERABLE --------------------------------------------------- All Participants granted Options under the Plan will have the same rights and privileges, and each Participant's rights and privileges under any Option granted under the Plan will be exercisable during his or her lifetime only by him or her, and will not be sold, pledged, assigned, or transferred in any manner. In the event any Participant violates the terms of this Section, any Options held by him or her may be terminated by the Company and upon return to the Participant of the balance of his or her withholding account, all his or her rights under the Plan will terminate. 9 SECTION 14. EMPLOYMENT RIGHTS ----------------- Nothing contained in the provisions of the Plan will be construed to give to any Employee the right to be retained in the employ of the Company or to interfere with the right of the Company to discharge any Employee at any time. SECTION 15. CHANGE IN CAPITALIZATION ------------------------ In the event of any change in the outstanding Stock of the Company by reason of a stock dividend, split-up, recapitalization, merger, consolidation, reorganization, or other capital change, the aggregate number of shares available under the Plan, the number of shares under Options granted but not exercised, the maximum number of shares purchasable under an Option, and the Option price will be appropriately adjusted. SECTION 16. ADMINISTRATION OF PLAN ---------------------- The Plan will be administered by the Board of Directors, which will have the right to determine any questions which may arise regarding the interpretation and application of the provisions of the Plan and to make, administer, and interpret such rules and regulations as it will deem necessary or advisable. SECTION 17. AMENDMENT AND TERMINATION OF PLAN --------------------------------- The Company reserves the right at any time or times to amend the Plan to any extent and in any manner it may deem advisable by vote of the Board of Directors; provided, however, that any amendment relating to the aggregate number of shares which may be issued under the Plan (other than an adjustment provided for in Section 15) will have no force or effect unless it will have been approved by the shareholders within twelve months before or after its adoption. The Plan may be suspended or terminated at any time by the Board of Directors, but no such suspension or termination will adversely affect the rights and privileges of holders of the outstanding Options. The Plan will terminate in any case when all or substantially all of the Stock reserved for the purposes of the Plan has been purchased. SECTION 18. APPROVAL OF SHAREHOLDERS ------------------------ The Plan will be subject to the approval of the shareholders of the Company secured within twelve months before or after the date the Plan is adopted by the Board of Directors. SECTION 19. EFFECTIVE DATE -------------- The effective date of the Plan shall be March 1, 2001. 10 EX-5 4 dex5.txt OPINION OF ROPES & GRAY EXHIBIT 5 [Ropes & Gray Letterhead] July 26, 2002 Genome Therapeutics Corp. 100 Beaver Street Waltham, Massachusetts 02453 Ladies and Gentlemen: We have acted as counsel for Genome Therapeutics Corp., a Massachusetts corporation (the "Company"), in connection with the preparation of a registration statement on Form S-8 and all exhibits thereto (the "Registration Statement") filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended, for the registration of 250,000 shares of Common Stock, $.10 par value (the "Shares"). The Shares being registered are issuable pursuant to the Company's Employee Stock Purchase Plan, as amended through June 25, 2002 (the "Plan"), which is attached as an exhibit to the Registration Statement. For purposes of this opinion, we have examined a copy of the Registration Statement; a copy of the Plan; the Restated Articles of Organization of the Company, as amended to date; the By-laws of the Company, as amended to date; the votes of the Board of Directors of the Company adopting the Plan; and such other documents and records as we deem necessary for purposes of this opinion. We have assumed that the Shares will be issued only as provided in the Plan and that the price at which such Shares are issued will not be less than the par value per share of the Company's Common Stock. We have also assumed that the issuance of any such shares will not result in the issuance by the Company of more than its authorized shares of Common Stock. Based upon and subject to the foregoing, we are of the opinion that the Shares have been duly authorized and that the Shares, when issued in accordance with the terms of the Plan, will have been validly issued and will be fully paid and nonassessable. In connection with any issue and sale of the Shares, steps should be taken to effect compliance with all applicable laws, rules and regulations of governmental authorities regulating sales and offerings of securities. We understand that this opinion is to be used in connection with the Registration Statement. We consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of our name therein. Very truly yours, /s/ ROPES & GRAY 11
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