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As filed with the Securities and Exchange Commission on August 15, 1997
Registration No. 333-
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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
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(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
(415) 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
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Each Class of Maximum Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
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Common Stock, 1,000,000 Shares $2.5625(1) $2,562,500(1) $777.00
no par value
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Common Stock, 100,000 Shares $2.178(2) $ 217,813(2) $ 67.00
no par value
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of $2.5625 per share, which is
the average of the high and low prices reported on the NASDAQ Stock
Market Inc.'s National Market on August 12, 1997.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of 85% of $2.5625 per share,
which is the average of the high and low prices reported on the NASDAQ
Stock Market Inc.'s National Market on August 12, 1997.
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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, 1996 and filed with the Commission on
March 28, 1997.
(b) The Company's Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997 and June 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- 95660, 33-44941 and 33-70586) under which
2,189,244 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.
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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.
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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.
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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 14th day
of August, 1997.
ANERGEN, INC.
By: /s/ Barry M. Sherman, M.D.
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Barry M. Sherman, M.D.
President and Chief Executive Officer
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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 IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE - TITLE DATE
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/s/ Barry M. Sherman, M.D. President, Chief Executive Officer, August 14, 1997
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(Barry M. Sherman, M.D.) Secretary and Director (Principal
Executive Officer)
/s/ David V. Smith Vice President, Finance and Chief August 14, 1997
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(David V. Smith) Financial Officer (Principal
Financial and Accounting Officer)
/s/ Bruce L. A. Carter, Ph.D. Director August 14, 1997
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(Bruce L. A. Carter, Ph.D.)
/s/ Nicholas J. Lowcock Director August 14, 1997
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(Nicholas J. Lowcock)
/s/ Harden M. McConnell, Ph.D. Director August 14, 1997
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(Harden M. McConnell, Ph.D.)
/s/ Harry H. Penner, Jr. Director August 14, 1997
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(Harry H. Penner, Jr.)
/s/ James E. Thomas Director August 14, 1997
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(James E. Thomas)
/s/ Nicole Vitullo Director August 14, 1997
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(Nicole Vitullo)
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INDEX TO EXHIBITS
Exhibit
Number Description
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4.1 1996 Stock Plan together with forms of agreements used thereunder.
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 Independent Auditors.
25.1 Power of Attorney (see page 5).
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