As filed with the Securities and Exchange Commission on July 2, 2004.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
____________________
GPC BIOTECH AG
(Exact name of Registrant as specified in its charter)
Germany 04-3158193
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
Fraunhoferstrasse 20
D-82152 Martinsried/Munich, Germany
Tel: 011 49 89 8565 2600
(Address and telephone number of Registrant's principal executive offices)
2002 Incentive Stock Option Plan
2001 Incentive Stock Option Plan
2000 Incentive Stock Option Plan
1999 U.S. Incentive Stock Option Plan
1996 Mitotix, Inc. Equity Incentive Plan
Convertible Bonds Terms and Conditions for Managers of the Company and
Management Bodies and Second-Tier Domestic and Management of Foreign Affiliated
Enterprises as well as for Consultants dated May 21, 2003
Convertible Bonds Terms and Conditions for Managers of the Company and
Management Bodies and Managers of Second-Tier Domestic and Foreign Affiliated
Enterprises as well as for Consultants dated June 11, 2002
(Full titles of the plans)
Brent Hatzis-Schoch
Vice President - Legal Affairs
GPC Biotech Inc.
101 College Road East
Princeton, New Jersey 08540
Tel: (609) 524-1000
(Name, address and telephone number of agent for service)
Copies to:
Doreen E. Lilienfeld, Esq.
Shearman & Sterling LLP
Broadgate West
9 Appold Street
London, England EC2A 2AP
+44 (0)20 7655 5942
======================================================================================================================
CALCULATION OF REGISTRATION FEE
======================================================================================================================
=============================== =============== ========================= ============================ ===============
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (2) Offering Price Per Aggregate Offering Price Registration
Security Fee
- ----------------------------------------------------------------------------------------------------------------------
- ------------------------------- --------------- ------------------------- ---------------------------- --------------
Ordinary Bearer Shares with no par value:
- ----------------------------------------------------------------------------------------------------------------------
- ------------------------------- --------------- ------------------------- ---------------------------- --------------
2002 Incentive Stock Option 140,450 US$14.59(3) US$ 2,049,109.32 US$ 259.62
Plan
426,425 US$ 5.07(4) US$ 2,166,966.02 US$ 274.56
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
2001 Incentive Stock Option 12,605 US$14.59(5) US$ 183,901.91 US$ 23.30
Plan
317,850 US$10.32(6) US$ 3,284,540.23 US$ 416.15
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
2000 Incentive Stock Option 2,700 US$14.59(7) US$ 39,391.92 US$ 4.99
Plan
297,175 US$21.33(8) US$ 6,337,296.10 US$ 802.94
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
1999 U.S. Incentive Stock 32,000 US$ 7.85(9) US$ 251,330.18 US$ 31.84
Option Plan
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
1996 Mitotix, Inc. Equity 58,777 US$ 4.34(10) US$ 255,116.04 US$ 32.32
Incentive Plan
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
Convertible Bonds Terms and 56,074 US$ 6.03(11) US$ 338,146.86 US$ 42.84
Conditions for Managers of
the Company and Management
Bodies and Second-Tier
Domestic and Management of
Foreign Affiliated
Enterprises as well as for
Consultants
dated May 21, 2003
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
- ----------------------------------------------------------------------------------------------------------------------
2
- ------------------------------- --------------- ------------------------- ---------------------------- ---------------
Convertible Bonds Terms and 111,426 US$ 4.91(12) US$ 547,305.79 US$ 69.34
Conditions for Managers of
the Company and Management
Bodies and Managers of
Second-Tier Domestic and )
Foreign Affiliated
Enterprises as well as for
Consultants
dated June 11, 2002
- ------------------------------- --------------- ------------------------- ---------------------------- --------------
- ----------------------------------------------------------------------------------------------------------------------
Total Shares 1,456,482 US$____ US$15,453,134.38 US$1,957.91
- ------------------------------- --------------- ------------------------- ---------------------------- --------------
- ----------------------------------------------------------------------------------------------------------------------
Total Interest Bearing 167,500 US$ 1.22(13) US$ 203,646.50 US$ 25.80
Convertible Bonds, nominal
value(euro)1.00:
- ------------------------------- --------------- ------------------------- ---------------------------- --------------
- ----------------------------------------------------------------------------------------------------------------------
Total number of Securities 1,623,982 US$15,656,780.88 US$1,983.71
registered
======================================================================================================================
1. American depositary receipts evidencing American depositary shares
issuable on deposit of the shares registered hereby have been
registered pursuant to a separate Registration Statement on Form
F-6 (Registration No. 333-116303).
2. The amount being registered also includes an indeterminate number
of Ordinary Bearer Shares with no par value ("Shares") which may
be offered as a result of any stock splits, stock dividends and
anti-dilution provisions and other terms in accordance with Rule
416 under the Securities Act of 1933, as amended (the "Securities
Act").
3. Pursuant to Rule 457(h) under the Securities Act, the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 140,450 Shares available for future awards under the
2002 Incentive Stock Option Plan are estimated based on the
Offering Price listed in the Registrant's Registration Statement
on Form F-1, as filed with the Commission on July 1, 2004 (File
No. 333-116303) pursuant to Rule 424(b) under the Securities Act
(the "Registration Statement on Form F-1"). Such estimate is being
utilized solely for the calculation of the registration fee.
4. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 426,425 Shares subject to outstanding awards under the
2002 Incentive Stock Option Plan are based on the weighted average
exercise price, translated into U.S. dollars based on the noon
buying rate of US$1.2158 per euro on July 1, 2004.
5. Pursuant to Rules 457(c) and 457(h) under the Securities Act, the
Proposed Maximum Offering Price Per Share and the Proposed Maximum
Offering Price for 12,605 Shares available for future awards under
the 2001 Incentive Stock Option Plan are estimated based on the
Offering Price listed in the Registrant's Registration Statement
on Form F-1. Such estimate is being utilized solely for the
calculation of the registration fee.
6. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 317,850 Shares subject to outstanding awards under the
2001 Incentive Stock Option Plan are based on the weighted average
exercise price, translated into U.S. dollars based on the noon
buying rate of US$1.2158 per euro on July 1, 2004.
7. Pursuant to Rules 457(c) and 457(h) under the Securities Act, the
Proposed Maximum Offering Price Per Share and the Proposed Maximum
Offering Price for 2,700 Shares available for future awards
under the 2000 Incentive Stock Option Plan are estimated based on
the Offering Price listed in the Registrant's Registration
Statement on Form F-1. Such estimate is being utilized solely for
the calculation of the registration fee.
8. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 297,175 Shares subject to outstanding awards under the
2000 Incentive Stock Option Plan are based on the weighted average
exercise price, translated into U.S. dollars based on the noon
buying rate of US$1.2158 per euro on July 1, 2004.
9. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 32,000 Shares subject to outstanding awards under the
1999 Incentive Stock Option Plan are based on the weighted average
exercise price, translated into U.S. dollars based on the noon
buying rate of US$1.2158 per euro on July 1, 2004.
10. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 58,777 Shares subject to outstanding awards under the
1996 Mitotix, Inc. 1996 Equity Incentive Plan are based on the
weighted average exercise price, translated into U.S. dollars
based on the noon buying rate of US$1.2158 per euro on July 1,
2004.
11. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 56,074 Shares subject to outstanding awards under the
Convertible Bonds Terms and Conditions for Managers of the Company
and Management Bodies and Managers of Second-Tier Domestic and
Foreign Affiliated Enterprises as well as for Consultants dated
May 21, 2003 (the "2003 Convertible Bond Program") are based on
the exercise price, translated into U.S. dollars based on the noon
buying rate of US$1.2158 per euro on July 1, 2004.
12. Pursuant to Rule 457(h) under the Securities Act the Proposed
Maximum Offering Price Per Share and the Proposed Maximum Offering
Price for 111,426 Shares subject to outstanding awards under the
Convertible Bonds Terms and Conditions for Managers of the Company
and Management Bodies and Managers of Second-Tier Domestic and
Foreign Affiliated Enterprises as well as for Consultants dated
June 11, 2002 (the "2002 Convertible Bond Program") are based on
the weighted average exercise price, translated into U.S. dollars
based on the noon buying rate of US$1.2158 per euro on July 1,
2004.
13. Represents the aggregate face value in U.S. Dollars of interest
bearing convertible bonds with a nominal value of (euro)1.00 (the
"Convertible Bonds"), translated into U.S. dollars based on the
noon buying rate of US$1.2158 per euro on July 1, 2004, of which
56,074 have been issued pursuant to the 2003 Convertible Bond
Program and 111,426 have been issued pursuant to the 2002
Convertible Bond Program.
3
Part I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
- -----------------------
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with
Rule 428 under the Securities Act, and the "Note" to Part I of Form S-8.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated by reference as of their
respective dates in this Registration Statement:
(a) The Registrant's Prospectus contained in the Registrant's
Registration Statement on Form F-1, as filed with the Commission on July
1, 2004 (File No. 333-116303) pursuant to Rule 424(b) under the Securities
Act, which contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been filed;
(b) (1) the description of the Registrant's Shares set forth under
the heading "Description of Share Capital" contained in the Registrant's
Registration Statement on Form F-1, as filed with the Commission on July
1, 2004 (File No. 333-116303);
(2) the description of the Registrant's American Depositary
Shares set forth under the heading "Description of American Depositary
Receipts" contained in the Registrant's Registration Statement on Form F-1,
as filed with the Commission on July 1, 2004 (File No. 333-116303); and
(3) the description of the Registrant's American Depositary
Shares contained in the form of Deposit Agreement (including the form of
American Depositary Receipt) among the Company, the Bank of New York, as
Depositary, and all owners of beneficial owners from time to time of ADRs
issued thereunder, filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form F-6, dated June 9, 2004 (File No. 333-116303).
All 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 to this Registration Statement 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 are a part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed
incorporated by reference in this Registration Statement 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.
Item 4. Description of Securities.
I. Shares
The Shares are registered pursuant to Section 12(b) of the Exchange
Act, and, therefore, the description with respect thereto is omitted.
II. Convertible Bonds
On May 21, 2003, and on June 11, 2002, respectively, the Registrant's
shareholders approved the implementation of the 2003 Convertible Bond Program
and the 2002 Convertible Bond Program. Under these programs, members of the
Registrant's management board (Vorstand) (the "Management Board"), members of
the management bodies and other employees with management functions of the
Registrant's affiliates and consultants are eligible to acquire the Registrant's
Shares pursuant to convertible bonds, with a nominal value (euro) 1.00 per
convertible bond ("Convertible Bonds"). The May 21, 2003 annual general meeting
of the Registrant approved the creation of conditional capitals in the amount of
up to (euro) 200,000, to cover the Convertible Bonds to be issued pursuant to
the 2003 Convertible Bond Program, and the June 11, 2002 annual general meeting
of the Registrant approved the creation of a conditional capital in the amount
of up to (euro) 500,000 to cover the Convertible Bonds to be issued pursuant to
the 2002 Convertible Bond Program, in each case subject to adjustment upon
changes to the Registrant's capitalization. The Management Board, together with
the Registrant's supervisory board (Aufsichtsrat) (the "Supervisory Board"),
and, to the extent that the Management Board is concerned, the Supervisory Board
alone, determines whether the Shares underlying the Convertible Bonds will be
made available from these conditional capitals or from a program to repurchase
the Registrant's Shares.
The Management Board, and to the extent that the Management Board is
concerned, the Supervisory Board, selects the eligible persons to whom
Convertible Bonds will be offered and determines the amounts, vesting periods
and other relevant terms (including acceleration provisions) of the Convertible
Bonds.
Convertible Bonds issued pursuant to the 2003 Convertible Bond Program
and the 2002 Convertible Bond Program may be exercised by the bondholder, after
expiry of the two-year waiting period from the date of issuance, to obtain one
Share for each Convertible Bond upon payment of the conversion price and bear
interest at 3.5 percent per annum starting from the date of issuance. The
Convertible Bonds may be offered to the eligible persons for subscription within
the last 15 working days of each calendar month. The time to maturity of the
Convertible Bonds is ten years from the date of issuance, after which the
Convertible Bonds lapse without compensation to the bondholder (other than
repayment of the nominal amount of the Convertible Bond plus accrued interest).
Convertible Bonds are generally not transferable during the life of the
bondholder, except to a credit institution specified by the Registrant following
the expiration of the two-year waiting period or of the cancellation period
described below.
Under the 2003 Convertible Bond Program and the 2002 Convertible Bond
Program, Shares issued upon exercise of a Convertible Bond --provided that they
are issued before the beginning of the Registrant's annual general meeting that
resolves on the allocation of retained earnings --are entitled to dividends from
the beginning of the previous fiscal year. In
6
the event that the Shares are issued after the Registrant's general meeting,
such Shares are entitled to dividends in the fiscal year in which they were
issued.
Convertible Bonds issued under the 2003 Convertible Bond Program and
the 2002 Convertible Bond Program generally vest and become uncancellable in
one-quarter installments on each of the first four anniversaries of the date of
issuance. A Convertible Bond may not be exercised until the occurrence of each
of the following events: (i) satisfaction of a two-year waiting requirement
(measured from the date of issuance); (ii) vesting; and (iii) the achievement of
a share price performance goal on the date of exercise. With respect to
Convertible Bonds issued pursuant to the 2003 Convertible Bond Program, the
price of the Registrant's Shares on the Frankfurt Stock Exchange on the date of
exercise must exceed the share price on May 21, 2003 by 100 percent. With
respect to Convertible Bonds issued pursuant to the 2002 Convertible Bond
Program, the price of the Registrant's Shares on the Frankfurt Stock Exchange
must exceed the exercise price of the Convertible Bonds on five successive
trading days within one month prior to exercise by a certain percentage (which
percentage is ten percent for the first year after the expiration of the
two-year waiting period and is increased by five percent for each year
thereafter). In addition, pursuant to the 2003 Convertible Bond Program and the
2002 Convertible Bond Program, a Convertible Bond may only be exercised within a
period of six weeks after publication of the Registrant's quarterly reports or
annual financial statement, and may not be exercised during a subscription
rights offering by the Registrant and during the period from December 24 to
December 31 of each calendar year. Notwithstanding the foregoing, Convertible
Bonds may not be exercised following the expiration of their respective terms,
which under the plans cannot exceed ten years from the date of grant. The
Convertible Bonds are generally not transferable during the life of the
bondholder, but are inheritable upon the death of the bondholder.
In the event of the termination of service of a bondholder, the
unvested portion of a Convertible Bond may be cancelled without compensation
(other than repayment of the nominal amount of the Convertible Bond plus accrued
interest), and the vested portion is generally cancelled 12 months after the
termination of service. In addition, the Registrant has the right to cancel a
bondholder's Convertible Bonds in the event insolvency proceedings are
instituted against the assets of such bondholder or the Convertible Bonds are
attached by a creditor of such bondholder for more than six months. A bondholder
may cancel his or her Convertible Bonds with three months' notice at the end of
a quarter.
In the event of the Registrant's merger with and into another company,
the Registrant's reorganization, a change in the nominal value of the Shares or
similar changes to the Registrant's capitalization or corporate structure, the
Convertible Bonds will be replaced by the right to purchase, at the base price,
an equivalent number, respectively, of Shares, equity interests or other
interests in the Registrant or the successor corporation, the value of which
corresponds to the market value of the Shares on the date on which such event
occurred.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
7
We provide customary liability insurance for our directors and
officers. Our Articles of Association do not provide for any indemnification of
members of our Supervisory Board and our Management Board for any liabilities
they may incur.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of securities registered hereby, 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; and
(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 further 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 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 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
8
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.
9
Part III
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 Munich, Germany on July 2, 2004.
GPC BIOTECH AG
By: /s/ Bernd R. Seizinger
--------------------------------------
Name: Bernd R. Seizinger
Title: President and Chief Executive Officer
By: /s/ Mirko Scherer
--------------------------------------
Name: Mirko Scherer
Title: Senior Vice President and Chief
Financial Officer
10
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature below
hereby constitutes and appoints Brent Hatzis-Schoch as his true and lawful
attorney-in-fact and agent, with full power of substitution, for him in any and
all capacities, to sign any and all amendments to this Registration Statement on
Form S-8, including post-effective amendments or any supplements thereto, and to
file the same, with all exhibits thereto and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent,
with full power of each to act alone, 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 for all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, 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/ Bernd R. Seizinger, M.D., Ph.D. Member of Management Board-- July 2, 2004
- ----------------------------------- President and Chief Executive
Bernd R. Seizinger, M.D., Ph.D. (principal executive officer)
/s/ Elmar Maier, Ph.D. Member of Management Board-- July 2, 2004
- ----------------------------------- Senior Vice President and
Elmar Maier, Ph.D. Chief Operating Officer
/s/ Mirko Scherer, Ph.D. Member of Management Board-- July 2, 2004
- ----------------------------------- Senior Vice President and
Mirko Scherer, Ph.D. Chief Financial Officer
(principal financial and
accounting officer)
/s/ Sebastian Meier-Ewert, Ph.D. Member of Management Board-- July 2, 2004
- ----------------------------------- Senior Vice President,
Sebastian Meier-Ewert, Ph.D. Chief Scientific Officer and
Chief Operating Officer
/s/ Jurgen Drews, M.D., Ph.D. Chairman of Supervisory July 2, 2004
- ---------------------------------- Board
Jurgen Drews, M.D., Ph.D.
/s/ Michael Lytton, J.D. Vice Chairman of Supervisory July 2, 2004
- ---------------------------------- Board
Michael Lytton, J.D.
/s/ Metin Colpan, Ph.D. Member of Supervisory Board July 2, 2004
- ----------------------------------
Metin Colpan, Ph.D.
11
/s/ Prabhavathi B. Fernandes, Ph.D. Member of Supervisory Board July 2, 2004
- -----------------------------------
Prabhavathi B. Fernandes, Ph.D.
/s/ Peter Preuss Member of Supervisory Board July 2, 2004
- -----------------------------------
Peter Preuss
/s/ Brent Hatzis-Schoch Authorized U.S. July 2, 2004
- ----------------------------------- Representative
Brent Hatzis-Schoch
Vice President - Legal Affairs
12
EXHIBIT INDEX
Exhibit No. Description of Document
4.1 Articles of Association of the Registrant (English
translation) (incorporated by reference to the Registrant's
Registration Statement on Form F-1 (File No. 333-116303,
filed with the Commission on June 9, 2004).
4.2 Form of Depositary Agreement between GPC Biotech and The
Bank of New York, as depositary, for holders from time to
time of American Depositary Receipts issued thereunder,
including the form of American Depositary Receipt
(incorporated by reference to Registrant's Registration
Statement on Form F-1 (File No. 333-116303, filed with the
Commission on June 9, 2004)).
4.3 2002 Incentive Stock Option Plan (previously filed as
Exhibit 10.27 to the Registrant's Registration Statement on
Form F-1 (File No. 333-116303, filed with the Commission on
June 9, 2004) and incorporated herein by reference).
4.4 2001 Incentive Stock Option Plan (previously filed as
Exhibit 10.28 to the Registrant's Registration Statement on
Form F-1 (File No. 333-116303, filed with the Commission on
June 9, 2004) and incorporated herein by reference).
4.5 2000 Incentive Stock Option Plan (previously filed as
Exhibit 10.29 to the Registrant's Registration Statement on
Form F-1 (File No. 333-116303, filed with the Commission on
June 9, 2004) and incorporated herein by reference).
4.6 1999 U.S. Incentive Stock Option Plan (previously filed as
Exhibit 10.30 to the Registrant's Registration Statement on
Form F-1 (File No. 333-116303, filed with the Commission on
June 9, 2004) and incorporated herein by reference).
*4.7 1996 Mitotix, Inc. Equity Incentive Plan.
4.8 Convertible Bonds Terms and Conditions for Managers of the
Company and Management Bodies and Second-Tier Domestic and
Management of Foreign Affiliated Enterprises as well as for
Consultants dated May 21, 2003 (previously filed as Exhibit
10.31 to the Registrant's Registration Statement on Form
F-1 (File No. 333-116303, filed with the Commission on June
9, 2004) and incorporated herein by reference).
*4.9 Convertible Bonds Terms and Conditions for Managers of the
Company and Management Bodies and Managers of Second-Tier
Domestic and Foreign Affiliated Enterprises as well as for
Consultants dated June 11, 2002.
*5.1 Opinion of Shearman & Sterling LLP as to the validity of the
Shares to be issued pursuant to the Plans.
*23.1 Consent of Ernst & Young AG, Independent Accountants.
13
*23.2 Consent of Shearman & Sterling LLP (included in Exhibit
5.1).
*24 Power of Attorney (included on signature page).
- ---------------------------
* Filed herewith.
14