Registration No. 333-
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UNITED STATES
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 of Principal Executive Offices, including Zip Code)
2004 Incentive Stock Option Plan
2005 Incentive Stock Option Plan
2006 Incentive Stock Option Plan
Convertible Bonds Terms and Conditions (August 31, 2004)
Convertible Bonds Terms and Conditions (June 8, 2005)
Convertible Bonds Terms and Conditions (May 24, 2006)
(Full titles of the plans)
Brent Hatzis-Schoch
Vice President & General Counsel
GPC Biotech Inc.
101 College Road East
Princeton, New Jersey 08540
Tel: (609) 524-1000
(Name, address and telephone number of agent for service)
Copy to:
Doreen E. Lilienfeld, Esq.
Shearman & Sterling LLP
599 Lexington Avenue
New York, New York 10022
(212) 848-7171
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CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered Offering Price Per Aggregate Offering Registration
(2) Security Price Fee
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Ordinary Bearer Shares, with no par
value:
2004 Incentive Stock Option Plan 3,125 US$14.09(3) US$44,031.25(3) US$4.71
846,875 US$12.46(4) US$10,552,062.50(4) US$1,140.48
2005 Incentive Stock Option Plan 100 US$14.09(5) US$1,409(5) US$0.15
224,900 US$15.71(6) US$3,534,078.60(6) US$378.15
2006 Incentive Stock Option Plan 411,500 US$14.09(7) US$5,796,389(7) US$620.21
3,500 US$14.09(8) US$49,301(8) US$5.28
Convertible Bonds Terms and 15,000 US$14.09(9) US$211,350.0(9) US$22.61
Conditions dated August 31, 2004 935,000 US$13.73(10) US$12,838,036.95(10) US$1,373.67
Convertible Bonds Terms and 180,000 US$14.09(11) US$2,535,480.00(11) US$271.30
Conditions dated June 8, 2005 720,000 US$13.35(12) US$9,613,440(12) US$1,028.64
Convertible Bonds Terms and 900,000 US$14.09(13) US$12,677,400(13) US$1,356.48
Conditions dated May 24, 2006
Total: 4,240,000
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Total Interest Bearing Convertible 2,750,000 US$1.28(14) US$3,520,000(14) US$2,467.52
Bonds, nominal value (euro)1.00:
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Total Number of Securities Registered 6,990,000 US$8,670
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(1) American Depositary Receipts ("ADRs") evidencing American Depositary Shares
("ADSs") issuable on deposit of the shares registered hereby have been
registered pursuant to a separate Registration Statement on Form F-6
(Registration No. 333-116306).
(2) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover an
indeterminate number of Ordinary Bearer Shares with no par value ("Shares")
of GPC Biotech AG (the "Registrant") and interest bearing Convertible Bonds
with a nominal value of (euro)1.00 (the "Convertible Bonds") that may be
offered as a result of any stock splits, stock dividends and anti-dilution
provisions and other terms.
(3) 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 3,125 Shares available for future awards under the 2004 Incentive Stock
Option Plan are based on the average of the high and low trading prices of
the Registrant's Shares on the Xetra trading system on the Frankfurt Stock
Exchange on August 23, 2006, (euro)11.01 (the "Share Price"), translated
into U.S. dollars using the Translation Rate. Such estimate is used 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
846,875 Shares subject to outstanding awards under the 2004 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$1.28 per euro on
August 23, 2006 (the "Translation Rate"). Such estimate is used solely for
the calculation of the registration fee.
(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 100 Shares available for future awards under the 2005 Incentive Stock
Option Plan are based on the Share Price, translated into U.S. dollars
using the Translation Rate. Such estimate is used 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
224,900 Shares subject to outstanding awards under the 2005 Incentive Stock
Option Plan are based on the weighted average exercise price, translated
into U.S. dollars using the Translation Rate. Such estimate is used solely
for the calculation of the registration fee.
(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 411,500 Shares available for future awards under the 2006 Incentive
Stock Option Plan are based on the Share Price, translated into U.S.
dollars using the Translation Rate. Such estimate is used solely for the
calculation of the registration fee.
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(8) Pursuant to Rule 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Offering Price for 3,500
Shares subject to outstanding awards under the 2006 Incentive Stock Option
Plan are based on the weighted average exercise price, translated into U.S.
dollars using the Translation Rate. Such estimate is used solely for the
calculation of the registration fee.
(9) 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 15,000 Shares available for future awards under the Convertible Bonds
Terms and Conditions dated August 31, 2004 (the "2004 Convertible Bond
Program") are based on the Share Price, translated into U.S. dollars using
the Translation Rate. Such estimate is used solely for the calculation of
the registration fee.
(10) Pursuant to Rule 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Offering Price for
935,000 Shares subject to outstanding awards under the 2004 Convertible
Bond Program are based on the weighted average exercise price, translated
into U.S. dollars using the Translation Rate. Such estimate is used solely
for the calculation of the registration fee.
(11) 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 180,000 Shares available for future awards under the Convertible Bonds
Terms and Conditions dated June 8, 2005 (the "2005 Convertible Bond
Program") are based on the Share Price, translated into U.S. dollars using
the Translation Rate. Such estimate is used solely for the calculation of
the registration fee.
(12) Pursuant to Rule 457(h) under the Securities Act, the Proposed Maximum
Offering Price Per Share and the Proposed Maximum Offering Price for
720,000 Shares subject to outstanding awards under the 2005 Convertible
Bond Program are based on the weighted average exercise price, translated
into U.S. dollars using the Translation Rate. Such estimate is used solely
for the calculation of the registration fee.
(13) 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 900,000 Shares available for future awards under the Convertible Bonds
Terms and Conditions dated May 24, 2006 (the "2006 Convertible Bond
Program") are based on the Share Price, translated into U.S. dollars using
the Translation Rate. Such estimate is used solely for the calculation of
the registration fee.
(14) Represents the aggregate face value of the Convertible Bonds translated
into U.S. dollars using the Translation Rate, of which 950,000 have been or
may be issued pursuant to the 2004 Convertible Bond Program, 900,000 have
been or may be issued pursuant to the 2005 Convertible Bond Program, and
900,000 may be issued pursuant to the 2006 Convertible Bond Program. Such
estimate is used solely for the calculation of the registration fee.
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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.
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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 annual report on Form 20-F filed for
the period ended December 31, 2005, as filed with the Commission on
April 3, 2006 pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (File No.
001-117629);
(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 June 29, 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 June 29, 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 10, 2004 (File No. 333-116306).
In addition, 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.
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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 24, 2006, June 8, 2005, and August 31, 2004,
respectively, the Registrant's shareholders approved the implementation of the
2006 Convertible Bond Program, 2005 Convertible Bond Program, and 2004
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 of the Registrant and its affiliated subsidiary
companies and, with the exception of the 2006 and the 2004 Convertible Bond
Program, consultants are eligible to acquire Shares when converting Convertible
Bonds, with a nominal value of (euro)1.00 per Convertible Bond. When converting
Convertible Bonds into Shares, holders are required to pay for each Share an
amount equal to 100% of the relevant conversion price minus EUR 1.
The Management Board, together with the Registrant's
supervisory board (Aufsichtsrat) (the "Supervisory Board"), and, to the extent
that the Registrant's Management Board is concerned, the Supervisory Board
alone, determines whether the Shares underlying the Convertible Bonds will be
made available from concurrently approved 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 2006 Convertible Bond
Program, 2005 Convertible Bond Program, and 2004 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% 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).
Under the 2006 Convertible Bond Program, 2005 Convertible Bond
Program, and 2004 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 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 2006 Convertible Bond
Program, 2005 Convertible Bond Program, and 2004 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. Convertible Bonds issued pursuant to the 2006
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Convertible Bond Program, the 2005 Convertible Bond Program, and the 2004
Convertible Bond Program may not be exercised unless the price of the
Registrant's shares develops better than a reference index during the four weeks
prior to the date of exercise. For the 2006 Convertible Bond Program such
reference index is the TecDax index of the Frankfurt Stock Exchange and for the
2005 Convertible Bond Program and the 2004 Convertible Bond Program it is the
Prime IG Biotechnology Index of the Frankfurt Stock Exchange. Pursuant to the
2006 Convertible Bond Program, the 2005 Convertible Bond Program, and the 2004
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 statements (or, in the case of the 2006 Convertible Bond
Program, six weeks after the second day after such publication), 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. 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. In addition, the Convertible Bonds 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.
The Registrant provides customary liability insurance for its
directors and officers. The Registrant's Articles of Association do not provide
for any indemnification of members of the Registrant's Supervisory Board and the
Registrant's Management Board for any liabilities they may incur.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
See attached 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 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.
8
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 this Registration Statement 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 this 28th day of
August 2006.
GPC BIOTECH AG
By: /s/ Bernd R. Seizinger
-------------------------------
Name: Bernd R. Seizinger
Title: Chief Executive Officer
By: /s/ Mirko Scherer
-------------------------------
Name: Mirko Scherer
Title: Senior Vice President and Chief
Financial Officer
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, this
Registration Statement has been signed below by the following persons in the
respective capacities and on the dates indicated.
Signature Title Date
/s/ Bernd R. Seizinger Member of Management Board--Chief August 28, 2006
- --------------------------- Executive Officer (Principal
Bernd R. Seizinger, M.D., Ph.D. Executive Officer)
/s/ Elmar Maier Member of Management Board--Senior August 28, 2006
- --------------------------- Vice President Business
Elmar Maier, Ph.D.
9
Development and Chief
Operating Officer
/s/ Mirko Scherer Member of Management Board--Senior August 28, 2006
- --------------------------- Vice President and Chief Financial
Mirko Scherer, Ph.D. Officer (Principal Financial and
Accounting Officer)
/s/ Sebastian Meier-Ewert Member of Management Board--Senior August 28, 2006
- --------------------------- Vice President, Chief Scientific
Sebastian Meier-Ewert, Ph.D. Officer and Chief Operating Officer
/s/ Brent Hatzis-Schoch Authorized U.S. Representative Vice August 28, 2006
- --------------------------- President & General Counsel
Brent Hatzis-Schoch
10
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 10, 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 10, 2004)).
4.3 2004 Incentive Stock Option Plan (incorporated by reference
to Exhibit 4.30 to the Registrant's Annual Report on Form
20-F (File No. 001-117629), filed with the Commission on
April 3, 2006).
4.4 2005 Incentive Stock Option Plan.(incorporated by reference
to Exhibit 4.29 to the Registrant's Annual Report on Form
20-F (File No. 001-117629), filed with the Commission on
April 3, 2006).
*4.5 2006 Incentive Stock Option Plan.
4.6 Convertible Bond Terms and Conditions (August 31, 2004)
(incorporated by reference to Exhibit 4.36 to the
Registrant's Annual Report on Form 20-F (File No.
001-117629), filed with the Commission on April 3, 2006).
4.7 Convertible Bond Terms and Conditions (June 8, 2005)
(incorporated by reference to Exhibit 4.35 to the
Registrant's Annual Report on Form 20-F (File No.
001-117629), filed with the Commission on April 3, 2006).
*4.8 Convertible Bond Terms and Conditions (May 24, 2006).
*5.1 Opinion of Simmons & Simmons.
*23.1 Consent of Ernst & Young AG, Independent Accountants.
*23.2 Consent of Simmons & Simmons (included in Exhibit 5.1).
*24.1 Power of Attorney (included on signature page).
- ---------------------------
* Filed herewith.
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