As filed with the Securities and Exchange Commission on August 8, 1996
Registration 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Aprogenex, Inc.
(Exact name of registrant as specified in its charter)
Delaware 76-0269632
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
8000 El Rio Street,
Houston, Texas 77054-4104
(Address of Principal Executive Offices) (Zip Code)
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APROGENEX, INC.
DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
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J. Donald Payne
Vice President - Finance, Chief Financial Officer
and Corporate Secretary
8000 El Rio Street, Houston, Texas 77054-4104
(Name and address of agent for service)
(713) 748-5114
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
==================================================================
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered share (1) price fee (2)
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Common Stock, 50,000 $1.00 $50,000 $18
par value shares
$.001 per
share
==================================================================
(1) Estimated pursuant to Rules 457(c) and (h) solely for purposes
of computing the registration fee and based upon the average of
the high and low sales prices reported on the American Stock
Exchange on August 5, 1996.
(2) In accordance with Rule 429, an additional 100,000 shares of
Common Stock, par value $.001 per share, are being carried forward
from Registration Statement No. 33-94258. The Registrant paid the
filing fee of $196 associated with such shares on July 3, 1995.
Pursuant to Rule 429, the Prospectus to which this Registration
Statement relates is a combined Prospectus that also relates to
Registration Statement No. 33-94258 previously filed by the
Registrant on Form S-8 on July 3, 1995.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information concerning the
Aprogenex, Inc. Director Stock Option Plan (the "Plan") required
by Item 1 of Form S-8 under the Securities Act of 1933, as amended
(the "Securities Act"), and the statement of availability of
registrant information, Plan information and other information
required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428. In accordance with Rule
428 and the requirements of Part I of Form S-8, such documents are
not being filed with the Securities and Exchange Commission (the
"Commission") either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
Aprogenex, Inc. (the "Company" or the "Registrant") shall maintain
a file of such documents in accordance with the provisions of Rule
428. Upon request, the Registrant shall furnish to the Commission
or its staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents, which the Company has filed with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (File No. 1-12416), are incorporated
in this Registration Statement by reference and shall be deemed to
be a part hereof:
(a) The Company's Annual Report on Form 10-KSB for the year ended
December 31, 1995;
(b) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A dated September 20,
1993;
(c) The Company's Quarterly Report on Form 10-QSB for the quarter
ended March 31, 1996;
(d) The Company's Quarterly Report on Form 10-QSB for the quarter
ended June 30, 1996;
(e) The Company's Current Reports on Form 8-K dated April 1, 1996
and June 12, 1996; and
(f) The Company's Proxy Statement dated as of June 7, 1996,
relating to the annual meeting of stockholders held on July
12,1996, as adjourned from June 24, 1996.
All documents filed by the Company with the Commission pursuant to
sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing
of a post-effective amendment of this Registration Statement which
indicates that all securities offered hereby have been sold, or
which deregisters all securities then remaining unsold, shall be
deemed to be incorporated in this Registration Statement by
reference and to be a part hereof from the date of filing of such
documents.
Any statement contained in this Registration Statement, in an
amendment hereto or in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes of the
Registration Statement to the extent that a statement contained
herein or in any subsequently filed supplement to this
Registration Statement or in any document that also is
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of the Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Restated Certificate of Incorporation, as amended, of the
Company limits the personal liability of directors of the Company
to the Company or its stockholders for monetary damages for breach
of fiduciary duty as a director to the fullest extent permitted by
Delaware law. Specifically, directors of the Company will not be
personally liable for monetary damages for breach of a directors'
fiduciary duty as a director, except for liability (i) for any
breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation
Law, which relates to unlawful payments of dividends or unlawful
stock repurchases or redemptions or (iv) for any transaction from
which the director derived an improper personal benefit. The
Delaware General Corporation Law does not eliminate a directors'
duty of care and has no effect on the availability of equitable
remedies such as injunction or rescission based upon a director's
breach of the duty of care.
Section 145 of the Delaware General Corporation Law permits a
Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or
completed legal action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of such corporation), by reason of the fact that
such person is or was a director, officer, employee or agent of
such corporation, or is or was serving at the request of such
corporation as a director, officer, employee or agent of another
corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that
such officer or director acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's
best interests, or, for criminal proceedings, had no reasonable
cause to believe his conduct was illegal. A Delaware corporation
may indemnify officers and directors in an action by or in the
right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable to the corporation in
the performance of his duty. Where an officer or director is
successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the
expenses which such officer or director actually and reasonably
incurred.
The Company's Bylaws provide for the indemnification of its
executive officers and directors, and the advancement to them of
expenses in connection with proceedings and claims, to the fullest
extent permitted by the Delaware General Corporation Law. The
Bylaws include related provisions meant to facilitate the
indemnitees' receipt of such benefits. These provisions cover,
among other things (i) specification of the method of determining
entitlement to indemnification and the selection of independent
counsel that will in some cases make such determination, (ii)
specification of certain time periods by which certain payments or
determinations must be made and actions must be taken and (iii)
the establishment of certain presumptions in favor of an
indemnitee. The benefits of certain of these provisions are
available to an indemnitee only if there has been a change in
control (as defined).
The Company has obtained directors' and officers' liability
insurance. The policy covers certain claims of up to $1 million
per occurrence and $1 million in the aggregate.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibits incorporated by reference to a prior filing are
designated by an asterisk (*).
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation of the
Company. (Incorporated by reference from Exhibit 3.1 to
the Company's Registration Statement on Form SB-2, Reg.
No. 33-66586-FW, declared effective October 15, 1993).
4.2* Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Aprogenex, Inc.
effective as of June 10, 1994 (Incorporated by
reference from Exhibit 3.1 to the Company's Form 10-QSB
for the quarterly period ended June 30, 1994).
4.3* Certificate of Designations of Series A Convertible
Preferred Stock effective May 26, 1995 (Incorporated by
reference from Exhibit 4.4 to the Company's Registration
Statement on Form S3, Reg No. 33-95014, filed July 26,
1995).
4.4* Bylaws of the Company (Incorporated by reference from
Exhibit 4-3 to the Company's Registration Statement on
Form S-3, Reg. No. 33-90514, filed on July 26, 1995).
4.5* Form of Certificate of Common Stock. (Incorporated by
reference from Exhibit 4.1 to the Company's Registration
Statement on Form SB-2, Reg. No. 33-66586-FW, declared
effective October 15, 1993.)
4.6* Convertible Note Subscription Agreement dated as of
May 1, 1996 among Aprogenex, Inc. and the various
purchasers (Incorporated by reference from Exhibit
4.1(a) to the Company's Form 8-K dated as of June 12,
1996).
4.7* Form of Convertible Note dated as of June 12, 1996
(Incorporated by reference from Exhibit 4.1(b) to the
Company's Form 8-K dated as of June 12, 1996).
4.8* Director Stock Option Plan, as in effect prior to
July 12, 1996 (Incorporated by reference from Exhibit
4.6 to the Company's Registration Statement on Form S-8,
Reg. No. 33-94258, filed on July 3, 1995).
4.9 Director Stock Option Plan, as Amended and Restated on
July 12, 1996.
5 Opinion of Baker and Botts, L.L.P.
23.1 Consent of Baker and Botts, L.L.P. (included in
Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
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Item 9. Undertakings.
(a) The Company hereby undertakes:
(1) To file, during any period in which it offers or sells
securities, 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 which,
individually or together, represent a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any additional or changed material information
with respect to the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of
this Item do not apply if the information required to be included
in a post-effective amendment by those paragraphs is incorporated
by reference in the Registration Statement from periodic reports
filed as a small business issuer under the Exchange Act.
(2) For purposes of determining any liability under the
Securities Act, it will treat each filing of a post-effective
amendment to this Registration Statement as a new registration
statement of 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 file a post-effective amendment to remove from
registration any of the securities that remain unsold at the end
of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provision, or otherwise, the Company 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 Company of
expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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.
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 Houston, the State of Texas, on August 8, 1996.
Aprogenex, Inc.
By: /s/ J. Donald Payne
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J. Donald Payne
Vice President-Finance
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in
the capacities indicated and on the date indicated.
DATED: August 8, 1996 BY: /s/ David Leech
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David Leech
President, Chief Executive Officer
and Director (Principal Executive
Officer and Director)
DATED: August 8, 1996 BY: /s/ Michael Hogan
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Michael Hogan
Director
DATED: August 8, 1996 BY: /s/ Christopher Kelly
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Christopher Kelly
Director
DATED: August 8, 1996 BY: /s/ Terry Ward
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Terry Ward
Director
DATED: August 8, 1996 BY: / s/ J. Donald Payne
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J. Donald Payne
Vice President - Finance,
Chief Financial Officer and
Corporate Secretary and Director
(Principal Financial and Accounting
Officer)
EXHIBIT INDEX
Exhibits incorporated by reference to a prior filing are
designated by an asterisk (*).
Exhibit
Number Description
4.1* Amended and Restated Certificate of Incorporation of the
Company. (Incorporated by reference from Exhibit 3.1 to
the Company's Registration Statement on Form SB-2,
Reg. No. 33-66586-FW, declared effective October 15,
1993).
4.2* Certificate of Amendment of Amended and Restated
Certificate of Incorporation of Aprogenex, Inc. effective
as of June 10, 1994 (Incorporated by reference from
Exhibit 3.1 to the Company's Form 10-QSB for the
quarterly period ended June 30, 1994).
4.3* Certificate of Designations of Series A Convertible
Preferred Stock effective May 26, 1995 (Incorporated by
reference from Exhibit 4.4 to the Company's Registration
Statement on Form S3, Reg No. 33-95014, filed July 26,
1995).
4.4* Bylaws of the Company (Incorporated by reference from
Exhibit 4-3 to the Company's Registration Statement on
Form S-3, Reg. No. 33-90514, filed on July 26, 1995).
4.5* Form of Certificate of Common Stock. (Incorporated by
reference from Exhibit 4.1 to the Company's Registration
Statement on Form SB-2, Reg. No. 33-66586-FW, declared
effective October 15, 1993.)
4.6* Convertible Note Subscription Agreement dated as of
May 1, 1996 among Aprogenex, Inc. and the various
purchasers (Incorporated by reference from Exhibit 4.1(a)
to the Company's Form 8-K dated as of June 12, 1996).
4.7* Form of Convertible Note dated as of June 12, 1996
(Incorporated by reference from Exhibit 4.1(b) to the
Company's Form 8-K dated as of June 12, 1996).
4.8* Director Stock Option Plan, as in effect prior to
July 12, 1996 (Incorporated by reference from Exhibit
4.6 to the Company's Registration Statement on Form S-8,
Reg. No. 33-94258, filed on July 3, 1995).
4.9 Director Stock Option Plan, as Amended and Restated on
July 12, 1996.
5 Opinion of Baker and Botts, L.L.P.
23.1 Consent of Baker and Botts, L.L.P. (included in
Exhibit 5).
23.2 Consent of Arthur Andersen LLP.