As filed with the Securities and Exchange Commission on August 21, 1998
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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T CELL SCIENCES, INC.
(Exact name of Registrant as specified in its charter)
Delaware 13-3191702
(State of incorporation) (I.R.S. Employer Identification Number)
119 Fourth Avenue
Needham, Massachusetts 02494
(781) 433-0771
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
VIRUS RESEARCH INSTITUTE, INC.
1992 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
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UNA S. RYAN, PH.D.
President and Chief Executive Officer
T CELL SCIENCES, INC.
119 Fourth Avenue
Needham, Massachusetts 02494
(781) 433-0771
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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With copies to:
STUART M. CABLE, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Title of each Class of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
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Common Stock, $.001 par value 1,600,000(1) $2.35(2) $3,760,000(2) $1,109.20
(including associated Preferred
Stock Purchase Rights)
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Warrants to purchase Common Stock 25,000 N/A N/A N/A
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(1) Plus such additional number of shares as may be required pursuant to the
Virus Research Institute, Inc. 1992 Equity Incentive Plan in the event of a
stock dividend, reverse stock split, split-up, recapitalization or other
similar event.
(2) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, on the
basis of the average of the high and low sale price of the common stock of T
Cell Sciences, Inc. as reported on the Nasdaq National Market on August 18,
1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the information required by Item 1 of this
Form S-8 and the statement of availability of information of T Cell Sciences,
Inc. (the "Registrant"), and other information required by Item 2 of this Form
will be sent or given to employees as specified by Rule 428 under the Securities
Act of 1933, as amended (the "Securities Act"). 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. 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 of any or all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The Registrant hereby incorporates by reference the documents listed below,
which have previously been filed with the Commission.
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997, as amended by the Registrant's Annual Report
Amendment on Form 10-K/A.
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998.
(c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 1998.
(d) The Registrant's Current Report on Form 8-K, dated August 21, 1998.
(e) The description of the Registrant's Common Stock contained in its
Registration Statement on Form 8-A, filed with the Commission on
September 22, 1986 under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and any amendments or reports
filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereunder have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
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The warrants to be issued upon the exercise of non-qualified stock options
issued under the Virus Research Institute, Inc. 1992 Equity Incentive Plan will
be issued pursuant to the Common Stock Purchase Warrant Provisions filed as an
exhibit hereto (the "Warrant Agreement"). The warrants will be evidenced by
warrant certificates (each, a "Warrant Certificate" and collectively the
"Warrant Certificates"), which will entitle the holder(s) thereof, at any time
prior to August 21, 2003 (the "Expiration Date"), to purchase the number of
shares of common stock, par value $.001 per share, of the Registrant (the
"Common Stock") evidenced by such Warrant Certificate at a purchase price of
$6.00 per share, subject to certain adjustments (the "Warrant Exercise Price").
To exercise all or any of the warrants represented by a Warrant
Certificate, the holder thereof is required to surrender the Warrant
Certificate(s) to the Registrant, complete and execute the election form (the
"Election to Purchase"), which is on the back of the Warrant Certificate, and
pay in full the Warrant Exercise Price for each share of Common Stock as to
which a warrant is exercised. The Warrant Exercise Price may be made in cash,
certified check or wire transfer in same day funds in an amount equal to the
Warrant Exercise Price multiplied by the number of shares of Common Stock as to
which the warrant is being exercised.
As promptly as practicable after the exercise of any warrants in accordance
with the Warrant Agreement, and in any event within three (3) business days
after the receipt of the Election to Purchase, the Registrant shall issue or
cause its transfer agent to issue a certificate or certificates for the number
of non-fractional shares of Common Stock registered in accordance with the
instructions set forth in the Election to Purchase, together with cash for any
fractional shares of Common Stock issuable upon the exercise of the warrants.
All shares of Common Stock issuable by the Registrant upon the exercise of the
warrants must be validly authorized and issued, fully paid, non-assessable, free
of preemptive rights and free from all taxes, liens, charges and security
interests in respect of the issuance thereof.
The Warrant Exercise Price and the number of shares of Common Stock
issuable upon exercise of each warrant shall be subject to adjustment in the
event of certain transactions including, without limitation, the Registrant's
(i) paying a dividend or making any other distribution of shares of Common
Stock, (ii) subdividing or reclassifying the outstanding shares of Common Stock
into a greater number of shares of Common Stock, (iii) combining or
reclassifying the outstanding shares of Common Stock into a smaller number of
shares of Common Stock, (iv) fixing the record date for the issuance of rights,
options, warrants or convertible or exchangeable securities to all holders of
shares of Common Stock entitling them to subscribe for or purchase shares of
Common Stock at a price per share that is lower (at the record date for such
issuance) than the Fair Market Value (as defined in the Warrant Agreement) per
share of Common Stock, or (v) fixing the record date for the making of a
distribution to all holders of shares of Common Stock of (a) shares of any class
of the Registrant's capital stock other than Common Stock, (b) evidences of the
Registrant's indebtedness, (c) assets other than cash dividends or
distributions, or (d) or rights, options, warrants or convertible or
exchangeable securities (other than those referred to in clause (iv) above).
In the event of any Reorganization (as defined in the Warrant Agreement) of
the Registrant, the holder of each outstanding warrant shall, upon exercise of
such warrant at any time thereafter, have the right to the stock, securities,
cash or other assets to which a holder of the number of shares of Common Stock
that would otherwise have been deliverable upon the exercise of such warrant
would have been entitled upon such Reorganization if such warrant had been
exercised in full immediately prior to such Reorganization.
Except with respect to Liquidating Dividends (as defined in the Warrant
Agreement), no holder of a warrant will be entitled to any of the rights of a
stockholder of the Registrant, including, without limitation, the right to vote,
to receive dividends and other distributions, or to attend or receive any notice
of meetings of stockholders or any other proceedings of the Registrant.
On August 21, 1998, the Registrant granted 1,811,155 warrants, which are
the only warrants currently issued and outstanding.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
Item 6. Indemnification of Directors and Officers.
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The Registrant is a Delaware corporation. Reference is made to Section 145
of the Delaware General Corporation Law (the "DGCL"), which enables a
corporation to eliminate or limit the personal liability of a director for
monetary damages for violations of the director's fiduciary duty, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under Section 145 or
(iv) for any transaction from which a director derived an improper personal
benefit. The Registrant has adopted such provisions in its Amended and Restated
By-Laws (the "By-Laws").
The DGCL permits, but does not require, a corporation to indemnify its
directors, officers, employees or agents and expressly provides that the
indemnification provided for under the DGCL shall not be deemed exclusive of any
indemnification right under any bylaw, vote of stockholders or disinterested
directors, or otherwise. The DGCL permits indemnification against expenses and
certain other liabilities arising out of legal actions brought or threatened
against such persons for their conduct on behalf of the corporation, provided
that each such person acted in good faith and in a manner that he or she
reasonably believed was in or not opposed to the corporation's best interests
and, in the case of a criminal proceeding, had no reasonable cause to believe
his or her conduct was unlawful. The DGCL does not allow indemnification of
directors in the case of an action by or in the right of the corporation
(including stockholder derivative suits) unless the directors successfully
defend the action or indemnification is ordered by the court. The By-Laws
provide for indemnification to the fullest extent authorized by the DGCL and,
therefore, these statutory indemnification rights are available to the
directors, officers, employees and agents of the Registrant.
2
The Registrant currently carries a directors' and officers' liability
insurance policy which provides for payment of expenses of the Registrant's
directors and officers in connection with threatened, pending or completed
actions, suits or proceedings against them in their capacities as directors and
officers, in accordance with the Bylaws and the DGCL.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
Exhibit
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4.1 Common Stock Purchase Warrant Provisions.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Powers of Attorney (included on page 5 of this registration
statement).
Item 9. Undertakings.
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(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:
(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 arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the undersigned registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference 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 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 (and, where applicable, each filing of an employee benefit
plan's annual report
3
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 the
Registrant pursuant to the foregoing provisions, or otherwise, the
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 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.
4
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 Needham, The Commonwealth of Massachusetts, on August
21, 1998.
T CELL SCIENCES, INC.
By: /s/ Una S. Ryan
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Una S. Ryan, Ph.D.
President, Chief Executive Officer and
Director
POWER OF ATTORNEY
KNOWN ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of Una S. Ryan, Ph.D. and Norman W.
Gorin as such person's true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for such person and in such person's
name, place and stead, in all and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent 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 such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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
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/s/ Una S. Ryan President, Chief Executive August 21, 1998
- ------------------------------ Officer and Director
Una S. Ryan, Ph.D. (Principal Executive Officer)
/s/ Norman W. Gorin Vice President, Finance, August 21, 1998
- ------------------------------ Chief Financial Officer
Norman W. Gorin and Secretary (Principal
Financial Officer and Principal
Accounting Officer)
/s/ Harry H. Penner, Jr. Director August 21, 1998
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Harry H. Penner, Jr.
/s/ Patrick C. Kung Director August 21, 1998
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Patrick C. Kung, Ph.D.
/s/ Thomas R. Ostermueller Director August 21, 1998
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Thomas R. Ostermueller
5
EXHIBIT INDEX
Exhibit No. Description
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4.1 Common Stock Purchase Warrant Provisions.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Powers of Attorney (included on page 5 of this registration
statement).