-----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, IgMCi5pMvtNAErNa5/0eby5BwxnkQfMjpDyD2lG3CEuurEGDMVH/Ttc2TU4OvPB9 L6wTjBYhNNlxXRI0RnEEzA== 0000891618-98-003571.txt : 19980804 0000891618-98-003571.hdr.sgml : 19980804 ACCESSION NUMBER: 0000891618-98-003571 CONFORMED SUBMISSION TYPE: S-8 POS PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19980803 EFFECTIVENESS DATE: 19980803 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 POS SEC ACT: SEC FILE NUMBER: 033-44941 FILM NUMBER: 98676044 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 POS 1 POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 1 As filed with the Securities and Exchange Commission on July 30, 1998 Registration Nos. 33-44941, 33-52186, 33-70586, 33-95660, 333-33771 and 333-52429 ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 POST EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT Under THE SECURITIES ACT OF 1933 ANERGEN, INC. (Exact name of issuer as specified in its charter) Delaware 77-0183594 - ----------------------- ------------------------------------ (State of Incorporation) (I.R.S. Employer Identification No.) 301 Penobscot Drive Redwood City, California 94063 (Address of principal executive offices) 1988 STOCK OPTION PLAN 1991 EMPLOYEE STOCK PURCHASE PLAN 1992 CONSULTANT STOCK PLAN 1995 DIRECTOR OPTION PLAN 1996 STOCK 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 of agent for service) Copies to: TREVOR J. CHAPLICK, ESQ. Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 (650) 493-9300 ================================================================================ CALCULATION OF REGISTRATION FEE ================================================================================
Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount of to be to be Price Offering Registration Registered Registered Per Share Price Fee ================================================================================ N/A* N/A* N/A* N/A* N/A* ================================================================================
* No additional securities are to be registered, and registration fees were paid upon filing of the original Registration Statement Nos. 33-44941, 33-52186, 33-70586, 33-95660, 333-33771 and 333-52429. Therefore, no further registration fee is required. 2 ANERGEN, INC. POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT ON FORM S-8 EXPLANATORY NOTE This Post-Effective Amendment No. 1 (the "Amendment") to certain Registration Statements on Form S-8 (File Nos. 33-44941, 33-52186, 33-70586, 33-95660, 333-33771 and 333-52429) (the "Registration Statements") is being filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the "Securities Act") by Anergen, Inc., a Delaware corporation ("Anergen Delaware" or the "Company" or the "Registrant"), which is the successor to Anergen, Inc., a California corporation ("Anergen California"), following a statutory merger effective on July 16, 1998 (the "Merger") for the purpose of changing Anergen California's state of incorporation. Prior to the Merger, Anergen Delaware had no assets or liabilities other than nominal assets or liabilities. In connection with the Merger, Anergen Delaware succeeded by operation of law to all of the assets and liabilities of Anergen California. The Merger was approved by the shareholders of Anergen California at a meeting for which proxies were solicited pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Except as modified by this Amendment (including modifications resulting from the incorporation of documents by reference), Anergen Delaware, by virtue of this Amendment, expressly adopts the Registration Statements as its own registration statements for all purposes of the Securities Act and the Exchange Act. PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. Information Incorporated by Reference In addition to the documents already incorporated by reference into the Registration Statements, all documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this Prospectus 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 Prospectus and to be part hereof from the date of filing such documents. ITEM 4. Description of Securities Not applicable. 3 ITEM 5. Interests of Named Experts and Counsel Not applicable. ITEM 6. Indemnification of Directors and Officers In accordance with the General Corporation Law of Delaware (the "Delaware law"), the Company's Certificate of Incorporation contains a provision which limits the liability of directors to the maximum extent permitted by Delaware Law as the same now exists or may hereinafter be amended. Section 102 of Delaware law provides that directors of a corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of their fiduciary duties as directors, except for liability (i) for any breach of their duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) for unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. The Company's Bylaws provide that the Company shall indemnify its directors and officers and may indemnify its employees and other agents to the fullest extent permitted by law. The Company's Bylaws also permit the Company to secure insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in such capacity, regardless of whether the Company would have the power to indemnify him or her against such liability under the Delaware Law. The Company currently has secured such insurance on behalf of its officers and directors. The Company has entered into agreements to indemnify its directors and officers, in addition to indemnification provided for in the Company's Bylaws. Subject to certain conditions, these agreements, among other things, indemnify the Company's directors and officers for certain expenses (including attorney's fees), judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by or in the right of the Company, arising out of such person's services as a director or officer of the Company, any subsidiary of the Company or any other company or enterprise to which the person provides services at the request of the Company ITEM 8. Exhibits 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation 23.1 Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1) 24.1 Power of Attorney (see Page II-4)
II-2 4 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 this Registration Statement or any material change to such information in this 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, 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 the Registrant pursuant to the Delaware General Corporations Law, the Certificate of Incorporation of the Registrant, the Bylaws of the Registrant, Indemnification Agreements entered into between the Registrant and its officers and directors, or otherwise, the 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 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 Securities Act and will be governed by the final adjudication of such issue. II-3 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-3 and has duly caused this Post-Effective Amendment No. 1 on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Redwood City, State of California, on the 31st day of July 1998. ANERGEN, INC. By: /s/ BARRY M. SHERMAN, M.D. -------------------------------------- Barry M. Sherman, M.D. President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature appears below constitutes and appoints, jointly and severally, Barry M. Sherman and David F. Smith his or her attorneys-in-fact, each 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 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 BELOW BY THE FOLLOWING PERSONS ON THE ___ DAY OF JULY 1998, IN THE CAPACITIES INDICATED.
- --------------------------- ---------------------------- -------------------- SIGNATURE TITLE /s/ BARRY M. SHERMAN, M.D. President, Chief Executive - --------------------------- Officer, Secretary and (Barry M. Sherman, M.D.) Director (Principal Executive Officer) /s/ DAVID SMITH Vice President, Finance and - --------------------------- Chief Financial Officer (David Smith) (Principal Financial and Accounting Officer) /s/ BRUCE L.A. CARTER Director - --------------------------- (Bruce L. A. Carter, Ph.D.) /s/ NICHOLAS J. LOWCOCK Director - --------------------------- (Nicholas J. Lowcock) /s/ HARDEN M. MCCONNELL 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/ NICOLE VITULLO Director - --------------------------- (Nicole Vitullo)
6
EXHIBIT NO. DESCRIPTION - ------- ----------------------------------------------------------------------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation 23.1 Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1) 24.1 Power of Attorney (see Page II-4)
EX-5.1 2 OPINION OF WILSON SONSINI GOODRICH & ROSATI 1 Exhibit 5.1 July 31, 1998 Anergen, Inc. 301 Penobscot Drive Redwood City, California 94063 RE: REGISTRATION STATEMENT ON FORM S-8 Gentlemen: We have examined the Registration Statement on Form S-8 to be filed by Anergen, Inc., a Delaware Corporation (the "Company"), with the Securities and Exchange Commission on or about July 30, 1998 (the "Registration Statement") in connection with the assumption pursuant to Rule 414 of the Securities Act of 1933, as amended, by the Company of certain Registration Statements on Form S-8 filed by the Company's predecessor, Anergen, Inc., a California Corporation ("Anergen California"), relating to shares of Common Stock of Anergen California reserved for issuance under the certain stock plans (the "Plans") of Anergen California. We understand that the Plans have been assumed by the Company and that in accordance the terms of the Plans, the Company has reserved shares (the "Shares") of Common Stock of the Company for issuance pursuant to the Plans. As your counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with said issuance and sale of the Shares pursuant to the Plans. It is our opinion that, upon completion of the proceedings being taken or contemplated by us to be taken prior to the issuance and sale of the Shares pursuant to the Plans, and upon completion of the proceedings being taken in order to permit such transaction 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 Plans and the Registration Statement, 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, including the prospectus constituting a part thereof, and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati -------------------------------- -----END PRIVACY-ENHANCED MESSAGE-----