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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 1997
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_____________________________
COULTER PHARMACEUTICAL, INC.
(Exact name of registrant as specified in its charter)
_____________________________
DELAWARE 94-3219075
(State of Incorporation) (I.R.S. Employer Identification No.)
_____________________________
COULTER PHARMACEUTICAL, INC.
550 CALIFORNIA AVENUE, SUITE 200
PALO ALTO, CA 94306-1440
(415) 842-7300
(Address and telephone number of principal executive offices)
_____________________________
1996 EQUITY INCENTIVE PLAN
1995 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
MICHAEL F. BIGHAM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COULTER PHARMACEUTICAL, INC.
550 CALIFORNIA AVENUE, SUITE 200
PALO ALTO, CA 94306-1440
(415) 842-7300
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________________
Copies to:
JAMES C. KITCH, ESQ.
JOHN A. DADO, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(415) 843-5000
____________________________
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT TO BE OFFERING PRICE PER SHARE AGGREGATE OFFERING Amount of
REGISTERED REGISTERED (1) PRICE (1) Registration Fee
Stock Options and Common
Stock ($.001 par value) 2,571,471 $ 7.135989 $ 18,349,989 $ 5,561
==========================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of
the registration fee pursuant to Rule 457(h). The offering price per
share and aggregate offering price are based upon (a) the weighted
average exercise price, for shares subject to outstanding options
granted by Coulter Pharmaceutical, Inc. (the "Registrant") under the
Registrant's 1995 Equity Incentive Plan and 1996 Equity Incentive Plan
(the "Incentive Plans") or (b) the average of the high and low prices
of the Registrant's Common Stock as reported on the Nasdaq Stock
Market for March 7, 1997, for (i) shares reserved for future grant
pursuant to the 1996 Equity Incentive Plan, and (ii) shares issuable
pursuant to the Employee Stock Purchase Plan (pursuant to Rule 457(c)
under the Act).
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NOTES TO CALCULATION OF REGISTRATION FEE
================================================================================
The chart below details the calculations of the registration fee:
TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
-------------- ---------------- ------------------------ ------------------------
Shares issuable pursuant to 217,370 $ 0.30 (1)(a) $ 65,211.00
outstanding options under 1995
Equity Incentive Plan 212,331 $ 0.75 (1)(a) $ 159,248.25
74,665 $ 1.20 (1)(a) $ 89,598.00
242,107 $ 2.25 (1)(a) $ 544,740.75
54,998 $ 4.50 (1)(a) $ 247,491.00
20,000 $ 12.00 (1)(a) $ 240,000.00
Shares issuable pursuant to 20,000 $12.00 (1)(a) $ 240,000.00
outstanding options under 1996
Equity Incentive Plan
Shares reserved for future 1,380,000 $ 9.69 (1)(b)(i) $ 13,372,200.00
issuance pursuant to the 1996
Equity Incentive Plan
Shares issuable pursuant to the 350,000 $ 9.69(1)(b)(ii) $ 3,391,500.00
Employee Stock Purchase Plan
Proposed Maximum Offering Price $ 18,349,989.00
Registration Fee $ 5,561.00
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Coulter Pharmaceutical, Inc. (the
"Registrant") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Registrant's latest annual report on Form 10-K filed
pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or either (1) the Registrant's latest prospectus
filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securites Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed, or
(2) the Registrant's effective registration statement on Form 10 or 20-F filed
under the Exchange Act containing audited financial statements for the
Registrant's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
reports, the prospectus or the registration statement referred to in (a) above.
(c) The description of the Registrant's Common Stock which is
contained in the registration statement filed under the Exchange Act, including
any amendment or report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 herein and to be a part
of this registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon
for the Company by Cooley Godward LLP, Palo Alto, California ("Cooley
Godward"). As of the date of this prospectus, Cooley Godward and certain
members of Cooley Godward beneficially owned an aggregate of approximately
7,810 shares of the Registrant's Common Stock.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act. The Registrant's Bylaws also provide that the Registrant will
indemnify its directors and executive officers and may indemnify its other
officers, employees and other agents to the fullest extent not prohibited by
Delaware law.
The Registrant's Certificate of Incorporation provides for the
elimination of liability for monetary damages for breach of the directors'
fiduciary duty of care to the Registrant and its stockholders. These provisions
do not eliminate the directors' duty of care and, in appropriate circumstances,
equitable remedies such as injunctive or other forms of non-monetary relief
will remain available under Delaware law. In addition, each director will
continue to be subject to liability for breach of the director's duty of
loyalty to the Registrant, for acts or omissions not in good faith or involving
intentional misconduct, for knowing violations of law, for any transaction from
which the director derived an improper personal benefit, and for payment of
dividends or approval of stock repurchases or redemptions that are unlawful
under Delaware law. The provision does not affect a director's responsibilities
under any other laws, such as the federal securities laws or state or federal
environmental laws.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
officer of the Registrant or any of its affiliated enterprises, provided such
person acted in good faith and
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in a manner such person reasonably believed to be in or not opposed to the best
interests of the Registrant and, with respect to any criminal proceeding, had
no reasonable cause to believe his or her conduct was unlawful. The
indemnification agreements also set forth certain procedures that will apply in
the event of a claim for indemnification thereunder.
EXHIBITS
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation of the Registrant.
4.2* Bylaws of the Registrant.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* The Registrant's 1996 Equity Incentive Plan.
99.2* Form of Incentive Stock Option under the 1996 Equity Incentive Plan.
99.3* Form of Nonstatutory Stock Option under the 1996 Equity Incentive
Plan.
99.4* Employee Stock Purchase Plan.
99.5 Employee Stock Purchase Plan Offering Document.
99.6 The Registrant's 1995 Equity Incentive Plan
* Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 filed with the SEC on December 11, 1996.
UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range may
be reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) (Section 230.424(b) of this chapter) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
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(iii) 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;
Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the issuer pursuant to section 13 or
section 15(d) of the Exchange Act that are incorporated by reference in the
registration statement.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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 Securities and Exchange
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.
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SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, 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 Palo Alto, State of
California, on March 13, 1997.
COULTER PHARMACEUTICAL, INC.
By /s/ Michael F. Bigham
-------------------------------------
Michael F. Bigham
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael F. Bigham and William G. Harris
and each or any one of them, his true and lawful attorney-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 and all amendments
(including post-effective amendments) to this Registration Statement, 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
connection therewith, 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 of them, or their or his substitutes or substitute, may
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/ Michael F. Bigham President, Chief Executive March 13, 1997
- ---------------------------- Officer and Director
Michael F. Bigham (Principal Executive Officer)
/s/ William G. Harris Vice President and Chief March 13, 1997
- ---------------------------- Financial Officer
William G. Harris (Principal Financial and
Accounting Officer)
/s/ Brian Atwood Director March 13, 1997
- ----------------------------
Brian Atwood
/s/ Donald L. Lucas Director March 13, 1997
- ----------------------------
Donald L. Lucas
/s/ Robert Momsen Director March 13, 1997
- ----------------------------
Robert Momsen
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/s/ Arnold Oronsky Director March 13, 1997
- -----------------------------
Arnold Oronsky
/s/ Sue Van Director March 13, 1997
- -----------------------------
Sue Van
/s/ George J. Sella, Jr. Director March 13, 1997
- -----------------------------
George J. Sella, Jr.
/s/ Joseph R. Coulter, III Director March 13, 1997
- -----------------------------
Joseph R. Coulter, III
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1* Amended and Restated Certificate of Incorporation of
the Registrant.
4.2* Bylaws of the Registrant.
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Cooley Godward LLP. Reference is made to
Exhibit 5.1.
24.1 Power of Attorney is contained on the signature pages.
99.1* The Registrant's 1996 Equity Incentive Plan.
99.2* Form of Incentive Stock Option under the 1996 Equity
Incentive Plan.
99.3* Form of Non-statutory Stock Option under the 1996
Equity Incentive Plan.
99.4* Employee Stock Purchase Plan.
99.5 Employee Stock Purchase Plan Offering Document.
99.6 The Registrant's 1995 Equity Incentive Plan.
* Documents incorporated by reference from the
Registrant's Registration Statement on Form
S-1 filed with the SEC on December 11, 1996.