1
As filed with the Securities and Exchange Commission on October 30, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------
COULTER PHARMACEUTICAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3219075
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
-----------------
COULTER PHARMACEUTICAL, INC.
600 GATEWAY BOULEVARD
SOUTH SAN FRANCISCO, CA 94080
(Address of principal executive offices)
-----------------
1996 EQUITY INCENTIVE PLAN
(Full title of the plans)
-----------------
MICHAEL F. BIGHAM
PRESIDENT AND CHIEF EXECUTIVE OFFICER
COULTER PHARMACEUTICAL, INC.
600 GATEWAY BOULEVARD
SOUTH SAN FRANCISCO, CA 94080
(650) 553-2000
-----------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------
Copies to:
ROBERT L. JONES, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
-----------------
CALCULATION OF REGISTRATION FEE
========================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
Stock Options and Common Stock
(par value $.001)............. 850,000 shares $35.00 29,750,000 $7,854.00
========================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h). The price per share and aggregate
offering price are based upon the average of the high and low prices of
Registrant's Common Stock on October 25, 2000 as reported on the Nasdaq
National Market.
2
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Coulter Pharmaceutical, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed on March 27, 2000, including all material
incorporated by reference therein and any amendments or reports filed
for the purpose of updating any of such reports, statements or
descriptions;
(b) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000, filed on May 16, 2000, including all material
incorporated by reference therein and any amendments or reports filed
for the purpose of updating any of such reports, statements or
descriptions;
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2000, filed on August 11, 2000, including all material
incorporated by reference therein and any amendments or reports filed
for the purpose of updating any of such reports, statements or
descriptions;
(d) The Company's latest prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Act"), filed on September
8, 2000, including all material incorporated by reference therein and
any amendments or reports filed for the purpose of updating any of
such reports, statements or descriptions;
(e) The description of our common stock set forth in our Registration
Statement on Form 8-A, filed on December 20, 1996, including any
amendments or reports filed for the purpose of updating any of such
reports, statements or descriptions; and
(f) The Proxy Statement for our 2000 Annual Meeting of Stockholders,
including any amendments or reports filed for the purpose of updating
any of such reports, statements or descriptions.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") 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 herein and to be a part of this registration statement from the date
of the filing of such reports and documents.
NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for the
Company by Cooley Godward LLP, Palo Alto, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Securities Act of
1933, as amended (the "Securities Act"). The Company's By-laws also provide that
the Company will indemnify its directors and executive officers, and may
indemnify its other officers, employees and other agents, to the fullest extent
not prohibited by Delaware law.
The Company's Amended and Restated Certificate of Incorporation (the
"Restated Certificate") provides that the liability of its directors for
monetary damages shall be eliminated to the fullest extent permissible under
Delaware law. Pursuant to Delaware law, this includes elimination of liability
for monetary damages for breach of the directors' fiduciary duty of care to the
Company and its stockholders. These provisions do not eliminate the directors'
duty of care and, in appropriate circumstances, equitable remedies such as
injunctive or other forms of non-monetary relief will remain available under
Delaware law. In addition, each director will continue to be subject to
liability for breach of the director's duty of loyalty to the Company, for acts
or omissions not in good faith or involving intentional misconduct, for knowing
violations of law, for any transaction from which the director derived an
improper personal benefit, and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. The provision
also does not affect a director's responsibilities under any other laws, such as
the federal securities laws or state or federal environmental laws.
3
The Company has been authorized by the Board to enter into agreements with
its directors and officers that require the Company to indemnify such persons to
the fullest extent authorized or permitted by the provisions of the Restated
Certificate and Delaware law against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred (including expenses of a
derivative action) in connection with any proceeding, whether actual or
threatened, to which any such person may be made a party by reason of the fact
that such person is or was a director, officer, employee or other agent of the
Company or any of its affiliated enterprises. Delaware law permits such
indemnification provided such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interest of the
Company and, with respect to any criminal proceeding, had no reasonable cause to
believe his or her conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder.
At present, there is no pending litigation or proceeding involving a
director or officer of the Company as to which indemnification is being sought
nor is the Company aware of any threatened litigation that may result in claims
for indemnification by any officer or director.
EXHIBITS
EXHIBIT NUMBER
- --------------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature pages.
99.1 1996 Equity Incentive Plan, as amended as of June 13, 2000.
99.2* Form of Incentive Stock Option Agreement used in connection
with the Incentive Plan
99.3* Form of Nonstatutory Stock Option Agreement used in connection
with the Incentive Plan
* Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-17661) filed with the SEC on December
11, 1996.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 end 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 a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement.
(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)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
4
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
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.
5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 South San Francisco, State of California, on October
30, 2000.
COULTER PHARMACEUTICAL, INC.
/s/ Michael F. Bigham
----------------------------------------
Michael F. Bigham
President & Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael F. Bigham and William G. Harris, and each
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any 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 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, 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/ Michael F. Bigham President, Chief Executive October 30, 2000
- --------------------------------- Officer and Director
(Michael F. Bigham)
/s/ William G. Harris Senior Vice President, October 30, 2000
- --------------------------------- Chief Financial Officer
(William G. Harris)
/s/ Arnold Oronsky, Ph.D. Chairman of the Board October 30, 2000
- ---------------------------------
(Arnold Oronsky, Ph.D.)
/s/ Brian G. Atwood Director October 30, 2000
- ---------------------------------
(Brian G. Atwood)
/s/ Joseph R. Coulter, III Director October 30, 2000
- ---------------------------------
(Joseph R. Coulter, III)
/s/ Donald L. Lucas Director October 30, 2000
- ---------------------------------
(Donald L. Lucas)
/s/ Robert Momsen Director October 30, 2000
- ---------------------------------
(Robert Momsen)
6
SIGNATURE TITLE DATE
- --------------------------------- -------------------------- ----------------
/s/ George J. Sella, Jr. Director October 30, 2000
- ---------------------------------
(George J. Sella, Jr.)
/s/ Samuel R. Saks, M.D. Director October 30, 2000
- ---------------------------------
(Samuel R. Saks, M.D.)
7
EXHIBIT INDEX
EXHIBIT NUMBER
- --------------
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24 Power of Attorney is contained on the signature pages.
99.1 1996 Equity Incentive Plan, as amended as of June 13, 2000.
99.2* Form of Incentive Stock Option Agreement used in connection
with the Incentive Plan
99.3* Form of Nonstatutory Stock Option Agreement used in connection
with the Incentive Plan
* Documents incorporated by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-17661) filed with the SEC on December
11, 1996.