-----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, NTIFOkuVkA0y51chY/OE8UsymN1zWhWOg4euuu+62wMIED790+lEYAdqAJi4WZbP yGwvR9vTJBfz9/6qg6mz5g== 0000891618-98-002300.txt : 19980513 0000891618-98-002300.hdr.sgml : 19980513 ACCESSION NUMBER: 0000891618-98-002300 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980512 EFFECTIVENESS DATE: 19980512 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ANERGEN INC CENTRAL INDEX KEY: 0000877929 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 770183594 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-52429 FILM NUMBER: 98616809 BUSINESS ADDRESS: STREET 1: 301 PENOBSCOT DR CITY: REDWOOD CITY STATE: CA ZIP: 94063 BUSINESS PHONE: 4153618901 MAIL ADDRESS: STREET 1: 301 PENOBSCOT DRIVE CITY: REDWOOD CITY STATE: CA ZIP: 94063 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on May 12, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT Under the Securities Act of 1933 ANERGEN, INC. (Exact name of Registrant as specified in its charter) CALIFORNIA 77-0183594 ---------- ---------- (State of incorporation) (I.R.S. Employer Identification No.) 301 Penobscot Drive Redwood City, California 94063 (Address, including zip code, of Registrant's of principal executive offices) 1996 STOCK PLAN 1991 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) BARRY M. SHERMAN, M.D. Chief Executive Officer ANERGEN, INC. 301 Penobscot Drive Redwood City, California 94063 (650) 361-8901 (Name, address, and telephone number, including area code, of agent for service) Copy to: Trevor J. Chaplick, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304-1050 (650) 493-9300 ================================================================================ 2 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 Aggregate Offering Registration Per Share Price Fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, 500,000 Shares $1.1688(1) $584,400.00(1) $173.00 no par value issuable pursuant to the 1991 Employee Stock Purchase Plan - ----------------------------------------------------------------------------------------------------------------- Common Stock, 1,000,000 Shares $1.375(2) $1,375,000.00(2) $406.00 no par value issuable pursuant to the 1996 Stock Plan =================================================================================================================
(1) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the filing fee on the basis of 85% of $1.1688 per share, which is the average of the high and low prices reported on the NASDAQ Stock Market Inc.'s National Market on May 6, 1998. (2) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the filing fee on the basis of $1.375 per share, which is the average of the high and low prices reported on the NASDAQ Stock Market Inc.'s National Market on May 6, 1998. -2- 3 ANERGEN, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed by Anergen, Inc. (the "Company") with the Securities and Exchange Commission (the "Commission"): (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1997 and filed with the Commission on March 31, 1998. (b) The Company's Quarterly Reports on Form 10-Q for the quarters ended June 30, 1997 and September 30, 1997. (c) The description of the Company's Common Stock set forth in the Company's Registration Statement on Form S-1 number 33-42107, as amended on October 8, 1991, incorporated by reference in the Company's Registration Statement on Form 8-A filed with the Commission on August 7, 1991, pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). (d) The Company's previously filed registration statements on Form S-8 (Nos. 33-33771, 33-95660, 33-44941 and 33-70586) under which 3,289,244 shares of Common Stock were registered under the 1988 Stock Option Plan, the 1992 Consultant Stock Plan, the 1991 Employee Stock Purchase Plan and the 1995 Director Option Plan. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, on or 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 part hereof from the date of filing such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. 4 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 317 of the California Corporations Code authorizes a court to award, or a corporation's Board of Directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Article IV of the Company's Amended and Restated Articles of Incorporation (the "Articles") and Article VII of the Company's Bylaws provide for indemnification of its directors, officers, employees and other agents to the maximum extent permitted by the California Corporations Code. In addition, the Company has entered into contractual agreements with certain directors and officers of the Company designated by the Board to indemnify such individuals to the full extent permitted by law. These agreements also resolve certain procedural and substantive matters that are not covered, or are covered in less detail, in the Bylaws or by the California Corporations Code. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the California Corporations Code, the Company's Articles, the foregoing Bylaw provisions or the Company's indemnification agreements, the Company has been informed that in the opinion of the 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered hereunder, the Company will, unless in the opinion of its counsel the question has already 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 Securities Act and will be governed by the final adjudication of such issue. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The exhibits to this Registration Statement are listed in the Exhibit Index elsewhere herein. -2- 5 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 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, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Exchange Act) 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 may be permitted to directors, officers and controlling persons of Registrant pursuant to the California Corporations Code, the Articles or the Bylaws of Registrant, indemnification agreements entered into between Registrant and its officers and directors, or otherwise, Registrant has been advised that in the opinion of the 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 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 hereunder, 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 Securities Act and will be governed by the final adjudication of such issue. -3- 6 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 Redwood City, State of California, on this 11th day of May 1998. ANERGEN, INC. By: /s/ BARRY M. SHERMAN --------------------------- Barry M. Sherman, M.D. President and Chief Executive Officer -4- 7 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature appears below constitutes and appoints Barry M. Sherman, M.D. and David V. Smith and each of them, as his or her attorney-in-fact, with the full power of substitution, for him or her in any and all capacities, to sign any amendments to this Registration Statement on Form S-8 (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, hereby ratifying and confirming all of said attorney-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 BELOW BY THE FOLLOWING PERSONS ON THE 11TH DAY OF MAY 1998, IN THE CAPACITIES INDICATED.
SIGNATURE TITLE /s/ Barry M. Sherman, M.D. President, Chief Executive Officer, - -------------------------------------- Secretary and Director (Principal (Barry M. Sherman, M.D.) Executive Officer) /s/ David V. Smith Vice President, Finance and Chief - -------------------------------------- Financial Officer (Principal (David V. Smith) Financial and Accounting Officer) /s/ Bruce L.A. Carter, Ph.D. Director - -------------------------------------- (Bruce L. A. Carter, Ph.D.) /s/ Nicholas J. Lowcock Director - -------------------------------------- (Nicholas J. Lowcock) /s/ Harden M. McConnell, Ph.D. Director - -------------------------------------- (Harden M. McConnell, Ph.D.) /s/ Harry H. Penner, Jr. Director - -------------------------------------- (Harry H. Penner, Jr.) /s/ James E. Thomas Director - -------------------------------------- (James E. Thomas) /s/ Nichole Vitullo Director - -------------------------------------- (Nicole Vitullo)
-5- 8 INDEX TO EXHIBITS
Exhibit Number Description - ------- ----------- 4.1 1996 Stock Plan together with forms of agreements used thereunder.(1) 4.2 1991 Employee Stock Purchase Plan together with forms of agreements used thereunder.(2) 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a Professional Corporation. 23.1 Consent of Counsel (Contained in Exhibit 5.1 above). 23.2 Consent of Ernst & Young LLP, Independent Auditors. 25.1 Power of Attorney (see page II-4).
- -------- (1) Exhibit 4.1 is incorporated by reference to the Registration Statement on Form S-8 filed by Anergen, Inc. on August 15, 1997 (Registration No. 333-33771). (2) Exhibit 4.2 is incorporated by reference to the Registration Statement on Form S-8 filed by Anergen, Inc. on August 15, 1997 (Registration No. 333-33771). -1- EX-5.1 2 OPINION OF WILSON SONSINI GOODRICH & ROSATI 1 EXHIBIT 5.1 May 11, 1998 Anergen, Inc. 301 Penobscot Drive Redwood City, CA 94063 RE: REGISTRATION STATEMENT ON FORM S-8 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 May 11, 1998 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 1,500,000 shares (the "Shares") of your Common Stock, of which 1,000,000 are to be issued pursuant to the 1996 Stock Plan and 500,000 are to be issued pursuant to the 1991 Employee Stock Purchase Plan (collectively, the "Plans"). As your legal counsel, 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. It is our opinion that, when issued and sold in the manner described in the Plans and pursuant to the agreements which accompany the Plans, the Shares will be legally and validly issued, fully paid and nonassessable. 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-23.2 3 CONSENT OF ERNSET & YOUNG LLP,INDEPENDENT AUDITORS 1 EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the 1996 Stock Plan and the 1991 Employee Stock Purchase Plan of our report dated February 6, 1998, with respect to the financial statements of Anergen, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Securities and Exchange Commission. Palo Alto, California /s/ ERNST & YOUNG LLP May 8, 1998 -----END PRIVACY-ENHANCED MESSAGE-----