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As filed with the Securities and Exchange Commission on August 5, 1998
REGISTRATION NO. 333-______
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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GELTEX PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
DELAWARE 04-3136767
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
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NINE FOURTH AVENUE, WALTHAM, MASSACHUSETTS 02451 (781) 290-5888
(Address and telephone number of registrant's principal executive offices)
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1995 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
MARK SKALETSKY, PRESIDENT AND CHIEF EXECUTIVE OFFICER
GelTex Pharmaceuticals, Inc.
Nine Fourth Avenue
Waltham, Massachusetts 02451
(781) 290-5888
(Name, address and telephone number of agent for service)
with copies to:
MAUREEN MANNING, ESQUIRE
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed maximum
Title of each class of securities to Amount to be maximum offering aggregate offering Amount of
be registered registered price per share (1) price registration fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 35,000 shares $21.3125 $745,937.50 $221
===================================================================================================================
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(1) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) based upon the average of the high and low sale
prices on July 31, 1998 as reported by the Nasdaq National Market.
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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") (File No. 0-26872) are incorporated herein by
reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, filed with the Commission on March 30, 1998.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998, filed with the Commission on May 14, 1998.
(c) The description of the Registrant's Common Stock and associated
share purchase rights contained in its Registration Statements on Form 8-A filed
with the Commission on September 26, 1995 as amended on October 12, 1995, and on
March 5, 1996, respectively, including any amendment or report filed hereafter
for the purpose of updating such description.
All documents filed after the date of this Registration Statement by
the Registrant pursuant to Section 13(a), 13(d), 14 and 15(d) of the Exchange
Act and prior to the filing of a post-effective amendment that indicates that
all shares of Common Stock offered hereunder have been sold or which deregisters
all shares of Common Stock remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the filing of such
reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits the
Registrant to indemnify directors, officers, employees and agents of the
Registrant against actual and reasonable expenses (including attorneys' fees)
incurred by them in connection with any action, suit or proceeding brought
against them by reason of their status or service as a director, officer,
employee or agent by or on behalf of the Registrant, and against expenses
(including attorneys' fees), judgments, fines and settlements actually and
reasonably incurred by him in connection with any such action, suit or
proceeding, if (i) he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant, and (ii) in the
case of a criminal proceeding, he had no reasonable cause to believe his conduct
was unlawful. Except as ordered by a court, no indemnification shall be made in
connection with
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any proceeding brought by or in the right of the corporation where the person
involved is adjudged to be liable to the Registrant.
Article EIGHTH of the Registrant's Restated Certificate of
Incorporation provides that a director shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except to the extent that elimination or limitation of liability
is not permitted under the Delaware General Corporation Law as in effect when
such liability is determined.
Article NINTH of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was, or has agreed to become a director or officer of the Registrant, or
is or was serving, or has agreed to serve at the request of the Registrant as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise. The
indemnification provided for in Article NINTH is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons. Article NINTH further permits the Board of Directors to authorize
the grant of indemnification rights to other employees and agents of the
Registrant and such rights may be equivalent to, or greater or less than, those
set forth in Article NINTH.
Article V, Section 1 of the Registrant's By-Laws provides that the
Registrant shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against such person and
incurred by such person in any such capacity or arising out of such person's
status as such.
The Registrant maintains insurance for directors and officers and has
entered into agreements with certain officers and directors affirming the
Registrant's obligation to indemnify them to the fullest extent permitted by law
and providing various other protections.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See exhibit index immediately following signature page.
ITEM 9. UNDERTAKINGS.
(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:
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(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 this registration statement (or the most
recent post-effective amendment hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this 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 this registration statement;
provided, however, that no filing will be made pursuant to paragraph (a)(1)(i)
or (a)(1)(ii) if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, 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 undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this 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 of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referred to in Item 6
hereof, 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 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 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, 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 Waltham, State of Massachusetts, on this 30th day
of July 1998.
GELTEX PHARMACEUTICALS, INC.
By: /s/ Mark Skaletsky
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Mark Skaletsky
President
POWER OF ATTORNEY
We, the undersigned officers and directors of GelTex Pharmaceuticals,
Inc. hereby severally constitute and appoint Mark Skaletsky and Elizabeth
Grammer, and each of them singly, our true and lawful attorneys-in-fact, with
full power to them in any and all capacities, to sign any and all amendments to
this Registration Statement on Form S-8 including any post-effective amendments
thereto, and to file the same, with exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming all that each of said attorneys-in-fact may 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 below by the following persons in the
capacities and on the dates indicated:
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SIGNATURE TITLE DATE
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/s/ Mark Skaletsky President (Principal Executive Officer) July 30, 1998
- ----------------------------- and Director
Mark Skaletsky
/s/ Paul J. Mellett, Jr. Vice President Administration and Finance July 30, 1998
- ----------------------------- (Principal Financial and Accounting Officer)
Paul J. Mellett, Jr.
/s/ Robert J. Carpenter Director July 30, 1998
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Robert J. Carpenter
/s/ J. Richard Crout Director July 30, 1998
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J. Richard Crout
/s/ Henri A. Termeer Director July 30, 1998
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Henri A. Termeer
/s/ Jesse Treu Director July 30, 1998
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Jesse Treu
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EXHIBIT INDEX
Exhibit Number Description
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4.1 Restated Certificate of Incorporation of the Company dated
June 4, 1996. Filed as Exhibit 3.1 to the Company's
Registration Statement on Form S-3 (File No. 333-45151) and
incorporated herein by reference.
4.2 Rights Agreement dated as of March 1, 1996 between the Company
and American Stock Transfer & Trust Company. Filed as Exhibit
1 to the Company's Registration Statement on Form 8-A dated
March 1, 1996 and incorporated herein by reference.
4.3 First Amendment to Rights Agreement between the Company and
American Stock Transfer & Trust Company dated as of July 29,
1997. Filed as Exhibit 4.3 to the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1997 (File No.
0-26872) and incorporated herein by reference.
4.4 Promissory Note dated May 21, 1997 issued to Fleet National
Bank. Filed as Exhibit 4.3 to the Company's Registration
Statement on Form S-3 (File No. 333-45151) and incorporated
herein by reference.
4.5 Security Agreement (Equipment) between the Company and Fleet
National Bank dated May 21, 1997. Filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-3 (File No.
333-45151) and incorporated herein by reference.
4.6 Letter Agreement between the Company and Fleet National Bank
dated May 21, 1997. Filed as Exhibit 4.5 to the Company's
Registration Statement on Form S-3 (File No. 333-45151) and
incorporated herein by reference.
4.7 Promissory Note dated October 31, 1997 issued to Fleet
National Bank. Filed as Exhibit 4.6 to the Company's
Registration Statement on Form S-3 (File No. 333-45151) and
incorporated herein by reference.
4.8 Loan Modification Agreement between the Company and Fleet
National Bank dated October 31, 1997. Filed as Exhibit 4.7 to
the Company's Registration Statement on Form S-3 (File No.
333-45151) and incorporated herein by reference.
5 Opinion of Palmer & Dodge LLP as to the legality of the
securities registered hereunder.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Palmer & Dodge LLP (contained in opinion filed as
Exhibit 5 hereto).
24 Power of Attorney (set forth on the signature page of this
Registration Statement).
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EXHIBIT 5
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
August 3, 1998
GelTex Pharmaceuticals, Inc.
Nine Fourth Avenue
Waltham, MA 02451
Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by GelTex
Pharmaceuticals, Inc. (the "Company") with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act"), on or about the date hereof. The Registration Statement relates to
35,000 shares (the "Shares") of the Company's Common Stock, $0.01 par value,
offered pursuant to the provisions of the Company's 1995 Director Stock Option
Plan (the "Plan").
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization of the issuance and sale of the
Shares. We have examined all such documents as we consider necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that when issued in
accordance with the terms of the Plan, the Shares will be duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement.
Very truly yours,
/s/ Palmer & Dodge LLP
PALMER & DODGE LLP
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1995 Director Stock Option Plan of GelTex
Pharmaceuticals, Inc. of our report dated February 9, 1998, with respect to the
financial statements of GelTex Pharmaceuticals, Inc. included in its Annual
Report (Form 10-K) for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Boston, Massachusetts
July 31, 1998
