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As filed with the Securities and Exchange Commission on April 30, 2001
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
INTROGEN THERAPEUTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 74-2704230
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION
INCORPORATION OR ORGANIZATION) NUMBER)
301 CONGRESS AVENUE, SUITE 1850
AUSTIN, TEXAS 78701
(512) 708-9310
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
2000 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLAN)
DAVID G. NANCE
CHIEF EXECUTIVE OFFICER
INTROGEN THERAPEUTICS, INC.
301 CONGRESS AVENUE, SUITE 1850
AUSTIN, TEXAS 78701
(512) 708-9310
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copy to:
CHRISTOPHER J. OZBURN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
8911 CAPITAL OF TEXAS HIGHWAY N.
WESTECH 360, SUITE 3350
AUSTIN, TX 78759-7247
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE OFFERING AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE OFFERING PRICE FEE
------------------------------------ ---------- --------------- -------------- ------------
2000 Employee Stock Purchase Plan Common Stock, 480,000 $3.37 $1,617,600 $404
$0.001 par value (1)
TOTAL REGISTRATION FEES: $404
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(1) The proposed maximum offering price per share has been computed in
accordance with Rule 457(h) under the Securities Act of 1933, as amended
(the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based upon 85% (see explanation in
following sentence) of the average high and low price of the Common Stock
as reported on the Nasdaq National Market on April 25, 2001, because the
price at which the options to be granted in the future may be exercised is
not currently determinable. Pursuant to the 2000 Employee Stock Purchase
Plan, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
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INTROGEN THERAPEUTICS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN 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 with the
Securities and Exchange Commission:
(a) The Registrant's Prospectus, dated October 12, 2000, filed
pursuant to Rule 424(b)(4) under the Securities Act of 1933, as
amended (the "Securities Act"), on October 12, 2000.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000, filed pursuant to Section 13 of the
Securities and Exchange Act of 1934, as amended (the "Exchange
Act"), on November 21, 2000.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 2000, filed pursuant to Section 13 of the
Exchange Act on February 14, 2001.
(d) The Registrant's Current Report on Form 8-K, filed pursuant to
Section 13 of the Exchange Act on April 3, 2001.
(e) The description of the Registrant's Common Stock contained in
the Registration Statement on Form 8-A filed pursuant to Section
12 of the Exchange Act on September 8, 2000.
All documents filed by the Registrant 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 of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
As of the date hereof, investment partnerships and certain members of
Wilson Sonsini Goodrich & Rosati, Professional Corporation, beneficially owned
an aggregate of 46,480 shares of the Registrant's Common Stock.
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Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law allows for the
indemnification of officers, directors and any corporate agents in terms
sufficiently broad to indemnify such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act. The Registrant's certificate of incorporation and bylaws provide
for indemnification of its directors, officers, employees and other agents to
the extent and under the circumstances permitted by the Delaware General
Corporation Law. The Registrant has also entered into agreements with its
directors and executive officers that require the Registrant, among other
things, to indemnify them against certain liabilities that may arise by reason
of their status or service as directors and executive officers to the fullest
extent permitted by Delaware law. The Registrant has also purchased directors
and officers liability insurance, which provides coverage against certain
liabilities, including liabilities under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibits listed on the accompanying Index to Exhibits are filed as
part hereof, or incorporated by reference into, this Registration Statement.
(See Index to Exhibits below)
Item 9. Undertakings.
A. The 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 a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The 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.
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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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant, Introgen Therapeutics, Inc., 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 Austin, State of
Texas, on April 30, 2001.
INTROGEN THERAPEUTICS, INC.
By: /s/ DAVID G. NANCE
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David G. Nance
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David G. Nance and James W. Albrecht,
Jr., and each of them, his attorneys-in-fact, each with the power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same, with all exhibits thereto and all 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 and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that such
attorneys-in-fact and agents or any of them, or his or their substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS REGISTRATION STATEMENT ON FORM S-8 HAS BEEN SIGNED BY THE FOLLOWING PERSONS
IN THE CAPACITIES AND ON THE DATES INDICATED.
Signature Title Date
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/s/ DAVID G. NANCE Chief Executive Officer and President (Principal
- ---------------------------------------- Executive Officer) April 30, 2001
David G. Nance
/s/ JAMES W. ALBRECHT, JR. Chief Financial Officer (Principal Financial and
- ---------------------------------------- Accounting Officer) April 30, 2001
James W. Albrecht, Jr.
/s/ JOHN N. KAPOOR, PH.D. Chairman of the Board and Director April 30, 2001
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John N. Kapoor, Ph.D.
/s/ WILLIAM H. CUNNINGHAM, PH.D. Director April 30, 2001
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William H. Cunningham, Ph.D.
/s/ CHARLES E. LONG Director April 30, 2001
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Charles E. Long
/s/ MAHENDRA G. SHAH, PH.D. Director April 30, 2001
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Mahendra G. Shah, Ph.D.
/s/ ELISE T. WANG Director April 30, 2001
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Elise T. Wang
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INTROGEN THERAPEUTICS, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
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4.1(1) 2000 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-6).
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(1) Incorporated by reference to Exhibit 10.4 filed with Registrant's
Registration Statement on Form S-1 (File No. 333-30582), as amended.
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