QuickLinks -- Click here to rapidly navigate through this documentAs filed with the Securities and Exchange Commission on August 1, 2003
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VICAL INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization) | 93-0948554
(I.R.S. Employer Identification No.) |
10390 Pacific Center Court
San Diego, California
(Address of Principal Executive Offices) |
92121-4340
(Zip Code) |
STOCK INCENTIVE PLAN OF VICAL INCORPORATED
(Full title of the plan)
| Copies to: |
Vijay B. Samant
President and Chief Executive Officer
Vical Incorporated
10390 Pacific Center Court
San Diego, California 92121-4340
(858) 646-1100
(Name, address and telephone number,
including area code,
of agent for service) |
Frederick T. Muto, Esq.
L. Kay Chandler, Esq.
Cooley GodwardLLP
4401 Eastgate Mall
San Diego, California 92121-1909
(858) 550-6000 |
CALCULATION OF REGISTRATION FEE
|
Title of Each Class of
Securities To Be Registered
| | Amount To Be
Registered(1)
| | Proposed
Maximum Offering
Price Per Share(2)
| | Proposed Maximum
Aggregate Offering
Price(2)
| | Amount of
Registration Fee
|
|---|
|
| Common Stock, $.01 par value | | 500,000 shares | | $5.55 | | $2,775,000 | | $224.50 |
|
- (1)
- Pursuant to Rule 416(a) under the Securities Act of 1933, as amended, (the "Securities Act") this Registration Statement also registers any additional shares of Registrant's Common Stock that become issuable under the plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Registrant's Common Stock.
- (2)
- Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h)(1) under the Securities Act. The price per share and aggregate offering price are based upon the average of the high and low prices of Registrant's Common Stock on July 30, 2003, as reported on the Nasdaq National Market.
This Registration Statement shall become effective upon filing in accordance with Rule 462 under the Securities Act of 1933.
INFORMATION REQUIRED PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8
General Instruction E Information
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plan is effective.
Registrant's Form S-8 Registration Statements filed with the Securities and Exchange Commission ("SEC") on April 9, 1993 (File No. 333-60826), July 15, 1994 (File No. 33-81602), June 27, 1997 (File No. 333-30181), July 31, 1998 (File No. 333-60293), June 15, 1999 (File No. 333-80681), July 30, 2001 (File No. 333-66254) and July 24, 2002 (File No. 333-97019), are incorporated by reference in this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Registrant with the SEC are incorporated by reference in this Registration Statement:
- (1)
- Registrant's Annual Report on Form 10-K (File No. 0-21088), for the fiscal year ended December 31, 2002;
- (2)
- Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2003; and
- (3)
- Registrant's Current Report on Form 8-K, filed on May 6, 2003;
- (4)
- Registrant's Current Report on Form 8-K, filed on May 16, 2003
- (5)
- Registrant's Current Report on Form 8-K, filed on July 31, 2003; and
- (6)
- The description of the Registrant's Common Stock contained in Registrant's Registration Statement on Form 8-A filed with the SEC on January 8, 1993, and the description of the Preferred Stock Purchase Rights for Registrant's Series A Preferred Stock contained in Registrant's Registration Statement on Form 8-A filed with the SEC on March 23, 1995.
In addition, all documents subsequently filed by Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, (the "Exchange Act") 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 a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Item 8. Exhibits.
Exhibit Number
| | Exhibit
|
|---|
| 3.1(i)(1) | | Restated Certificate of Incorporation. |
3.1(ii)(1) |
|
Amended and Restated Bylaws. |
4.1(1) |
|
Specimen Common Stock Certificate. |
4.2(2) |
|
Rights Agreement dated as of March 20, 1995, between the Company and First Interstate Bank of California. |
5.1 |
|
Opinion of Cooley Godward LLP. |
23.1 |
|
Consent of KPMG LLP. |
23.2 |
|
Consent of Arthur Andersen LLP. |
23.3 |
|
Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. |
24.1 |
|
Power of Attorney. Reference is made to page 5. |
99.1(3) |
|
Amended and Restated Stock Incentive Plan of Vical Incorporated. |
- (1)
- Incorporated by reference to the exhibit of the same number filed with the Company's Registration Statement on Form S-3 (No. 33-95812) filed on August 15, 1995.
- (2)
- Incorporated by reference to the exhibit of the same number filed with the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994.
- (3)
- Incorporated by reference to the Registrant's Definitive Proxy Statement on Schedule 14A (No. 000-21088), filed on April 23, 2003.
Item 9. Undertakings.
(a) The 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 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.
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(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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the SEC 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.
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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 San Diego, State of California, on July 31, 2003.
| | | VICAL INCORPORATED |
|
|
By |
/s/ MARTHA J. DEMSKI
Martha J. Demski
Vice President, Chief Financial Officer,
Treasurer and Secretary |
POWER OF ATTORNEY
KNOW ALL MEN AND WOMEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Vijay B. Samant and Martha J. Demski, and each of them, his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration Statement, and to file the same, with 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her 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/ VIJAY B. SAMANT
Vijay B. Samant | | President, Chief Executive Officer and Director (Principal Executive Officer) | | July 31, 2003 |
/s/ MARTHA J. DEMSKI
Martha J. Demski |
|
Vice President, Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) |
|
July 31, 2003 |
/s/ R. GORDON DOUGLAS
R. Gordon Douglas |
|
Chairman of the Board of Directors |
|
July 31, 2003 |
/s/ M. BLAKE INGLE
M. Blake Ingle |
|
Director |
|
July 31, 2003 |
/s/ PATRICK F. LATTERELL
Patrick F. Latterell |
|
Director |
|
July 31, 2003 |
/s/ GARY A. LYONS
Gary A. Lyons |
|
Director |
|
July 31, 2003 |
/s/ ROBERT C. MERTON
Robert C. Merton |
|
Director |
|
July 31, 2003 |
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EXHIBITS
Exhibit Number
| | Exhibit
|
|---|
| 3.1(i)(1) | | Restated Certificate of Incorporation. |
3.1(ii)(1) |
|
Amended and Restated Bylaws. |
4.1(1) |
|
Specimen Common Stock Certificate. |
4.2(2) |
|
Rights Agreement dated as of March 20, 1995, between the Company and First Interstate Bank of California. |
5.1 |
|
Opinion of Cooley Godward LLP. |
23.1 |
|
Consent of KPMG LLP. |
23.2 |
|
Consent of Arthur Andersen LLP. |
23.3 |
|
Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1. |
24.1 |
|
Power of Attorney. Reference is made to page 5. |
99.1(3) |
|
Amended and Restated Stock Incentive Plan of Vical Incorporated. |
- (1)
- Incorporated by reference to the exhibit of the same number filed with the Company's Registration Statement on Form S-3 (No. 33-95812) filed on August 15, 1995.
- (2)
- Incorporated by reference to the exhibit of the same number filed with the Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994.
- (3)
- Incorporated by reference to the Registrant's Definitive Proxy Statement on Schedule 14A (No. 000-21088), filed on April 23, 2003.
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INFORMATION REQUIRED PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENTSIGNATURESPOWER OF ATTORNEYEXHIBITS
