<PAGE> 1
As filed with the Securities and Exchange Commission on April 21, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
ILEX ONCOLOGY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2699185
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
11550 IH 10 WEST, SUITE 300
SAN ANTONIO, TEXAS 78230
(Address of Principal Executive Offices) (Zip Code)
ILEX ONCOLOGY, INC. 1995 STOCK OPTION PLAN
ILEX ONCOLOGY, INC. 1996 NON-EMPLOYEE DIRECTOR
STOCK OPTION PLAN
(Full title of the plans)
RICHARD L. LOVE
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
ILEX ONCOLOGY, INC.
11550 IH 10 WEST, SUITE 300
SAN ANTONIO, TEXAS 78230
(Name and address of agent for service)
(210) 949-8200
(Telephone number, including area code, of agent for service)
-------------------------
With Copy to:
Fulbright & Jaworski L.L.P.
300 Convent Street, Suite 2200
San Antonio, Texas 78205
(210) 224-5575
Attention: Phillip M. Renfro
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed
Proposed Maximum Maximum Amount of
Title of Securities to be Offering Price Per Aggregate Registration
Registered Amount to be registered Share (1) Offering Price (1) Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, $.01 par value . . . 1,313,078 shares $12.32 $16,177,121 $4,903
- --------------------------------------------------------------------------------------------------------------------------
Total . . . . . . . . . . . . . . . $16,177,121 $4,903
==========================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(c) and (h) solely for the
purpose of calculating the registration fee on the basis of the
average of the high and low prices of the Common Stock as reported by
the National Market System of NASDAQ on April 16, 1997.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are hereby incorporated by reference in
this Registration Statement:
1. The prospectus of ILEX Oncology, Inc., a Delaware
corporation (the "Registrant" or the "Company"), filed with Registration
Statement No. 333-17769 pursuant to Rule 424(b) under the Securities of 1933,
as amended (the "Securities Act"), which contains audited financial statements
of the Registrant for the fiscal year ended December 31, 1996;
2. All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the effective date of the Registration Statement No. 333-17769; and
3. The description of the Registrant's common stock, $.01
par value (the "Common Stock"), set forth under the caption "Description of the
Registrant's Securities to be Registered" contained in the Registrant's Form
8-A, filed by the Registrant with the Securities Exchange Commission pursuant
to the Exchange Act on February 11, 1997.
All documents filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of the
filing hereof 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 a 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law empowers the
Registrant to, and the Bylaws of the Registrant provide that it shall,
indemnify any 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 by reason of
the fact that he is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the
II-1
<PAGE> 3
request of the Registrant as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses, judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or proceeding
if he acted in good faith and in a manner he reasonably believed to be in or
not opposed to the best interest of the Registrant, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful; except that, in the case of an action or suit by or in the right
of the Registrant, no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the Registrant
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine that such person is fairly and
reasonably entitled to indemnity for proper expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
3.1 Amended and Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 of the Company's
Registration Statement on Form S-1, as amended (Reg. No.
333-17769)).
3.2 Bylaws of the Company, as amended (incorporated by reference to
Exhibit 3.2 of the Company's Registration Statement on Form S-1, as
amended (Reg. No. 333-17769)).
4.1 Specimen Common Stock Certificate (incorporated by reference to
Exhibit 4.1 of the Company's Registration Statement on Form S-1, as
amended (Reg. No. 333-17769)).
4.2 ILEX Oncology, Inc. 1995 Stock Option Plan (incorporated by
reference to Exhibit 10.47 of the Company's Registration Statement
on Form S-1, as amended (Reg. No. 333-17769)).
* 4.3 Form of Incentive Stock Option Agreement under the 1995 Stock
Option Plan.
4.4 ILEX Oncology, Inc. 1996 Non-Employee Director Stock Option Plan
(incorporated by reference to Exhibit 10.48 of the Company's
Registration Statement on Form S-1, as amended (Reg. No.
333-17769)).
4.5 Form of Non-Employee Director Stock Option Agreement under the 1996
Non-Employee Director Stock Option Plan (incorporated by reference
to Exhibit 10.49 of the Company's Registration Statement on Form
S-1, as amended (Reg. No. 333-17769)).
* 5.1 Opinion of Fulbright & Jaworski L.L.P.
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* 23.1 Consent of Arthur Andersen LLP.
* 23.3 Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1).
* 24.1 Powers of Attorney from certain members of the Board of Directors
of the Company (included at II-5).
- --------------------
* Filed herewith.
ITEM 9. UNDERTAKINGS.
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 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;
and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
Registration Statement;
provided, however, that paragraphs (i) and (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 Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act of 1934 that are incorporated by reference
in this 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 herein, 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.
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 this
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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.
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<PAGE> 6
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, 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 SAN ANTONIO, STATE OF TEXAS, ON APRIL 21, 1997.
ILEX ONCOLOGY, INC.
By: /s/ Richard L. Love
---------------------------------------
Richard L. Love
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard L. Love and James R. Koch, and
each 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
and all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
and either 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 said attorney-in-fact and agent or either of
them, or their or his substitute or substitutes, 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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary V. Woods Director April 21, 1997
- ------------------------------------
Gary V. Woods
/s/ Richard L. Love President, Chief Executive Officer and April 21, 1997
- ------------------------------------ Director (Principal Executive Officer)
Richard L. Love
/s/ Alexander L. Weis, Ph.D. Director April 21, 1997
- ------------------------------------
Alexander L. Weis, Ph.D.
/s/ James R. Koch Vice President and Chief Financial April 21, 1997
- ------------------------------------ Officer (Principal Financial and
James R. Koch Accounting Officer
/s/ Daniel D. Von Hoff, M.D. Director April 21, 1997
- ------------------------------------
Daniel D. Von Hoff, M.D.
</TABLE>
II-5
<PAGE> 7
<TABLE>
<S> <C> <C>
/s/ John L. Cassis Director April 21, 1997
- ------------------------------------
John L. Cassis
/s/ A. Dana Callow, Jr. Director April 21, 1997
- ------------------------------------
A. Dana Callow, Jr.
/s/ Ruskin C. Norman, M.D. Director April 21, 1997
- ------------------------------------
Ruskin C. Norman, M.D.
Director
- ------------------------------------
Jerry R. Mitchell, M.D., Ph.D.
/s/ Jason S. Fisherman, M.D. Director April 21, 1997
- ------------------------------------
Jason S. Fisherman, M.D.
</TABLE>
II-6
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT
- ------- --------
<S> <C>
4.3 Form of Incentive Stock Option Agreement under the 1995 Stock
Option Plan.
5.1 Opinion of Fulbright & Jaworski L.L.P.
23.1 Consent of Arthur Andersen LLP.
</TABLE>
<PAGE> 1
ILEX ONCOLOGY, INC.
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT is made as of the ____ day of ________, 199_ (the "Grant
Date") between ILEX ONCOLOGY, INC., a Delaware corporation (the "Company"), and
_____________________________ (the "Optionee").
WITNESSETH:
WHEREAS, effective as of January 12, 1995, the stockholders of the
Company adopted the ILEX Oncology, Inc. 1995 Stock Option Plan, as amended from
time to time (the "Plan"), to provide a means whereby the Company may, through
the grant of options to purchase the Company's common stock, $.01 par value
("Common Stock"), to employees of and consultants to the Company and of any
subsidiary, attract and retain persons of ability (including officers and
directors) as key employees and consultants, and motivate such employees and
consultants to exert their best efforts on behalf of the Company and any such
subsidiary;
WHEREAS, the Optionee is a _____________ of the Company; and
WHEREAS, the Compensation Committee of the Company (the "Committee")
considers desirable and in the best interests of the Company that the Optionee
be granted an incentive stock option to purchase shares of the Company's Common
Stock.
NOW, THEREFORE, in consideration of these premises, the parties agree as
follows:
1. GRANT. The Company grants to the Optionee an option to purchase
______ shares of Common Stock at a per-share price of ____ and no/100 dollars
($____) (the "Option Price") on the terms and subject to the conditions set
forth in this Agreement (the "Option") and as set forth in the Plan. The
Option is intended to be an incentive stock option which satisfies the
requirements of Section 422 of the Internal Revenue Code of 1986, as amended.
2. DURATION AND EXERCISE. Subject to the provisions of the Plan,
the duration of the Option shall be for the period beginning on the Grant Date
and continuing through the latest of (i) the close of business on the fifth
anniversary of the Grant Date, (ii) the close of business on the one year
anniversary of the termination of Optionee's employment with the Company, and
(iii) one year subsequent to the termination of the "Lock-up period" that is
negotiated by the Company and its underwriters in connection with an initial
public offering of the Company's Common Stock (the "Option Period"). However,
in no event shall the Option be exercisable after the tenth anniversary of the
effective date of this Agreement. Except to the extent otherwise provided in
the Plan, the manner, time and rate of exercise of the Option shall be in
accordance with the following terms:
(a) This Option may not be exercised in any part from the
Grant Date to the first anniversary of the Grant Date.
<PAGE> 2
(b) No more than 25% of the total Option may be exercised from
the day after the first anniversary of the Grant Date to the second
anniversary of the Grant Date.
(c) No more than 50% of the total Option may be exercised from
the day after the second anniversary of the Grant Date to the third
anniversary of the Grant Date.
(d) No more than 75% of the total Option may be exercised from
the day after the third anniversary of the Grant Date to the fourth
anniversary of the Grant Date.
(e) This Option may be fully exercised from the day after the
fourth anniversary of the Grant Date through the expiration of the
Option Period.
3. NOTICE OF EXERCISE. The Option, or any part of it, shall be
exercised by written notice directed to the Committee at the following address:
Compensation Committee of
the Board of Directors
ILEX Oncology, Inc.
11550 IH 10 West, Suite 300
San Antonio, TX 78230-1064
Such notice must state the Grant Date, the number of shares of Common Stock
subject to the grant, and the number of shares of Common Stock with respect to
which the Option is being exercised. The notice shall be accompanied by check,
bank draft, money order or other cash payment or by delivery of a certificate
or certificates, properly endorsed, for shares of Common Stock equivalent in
fair market value on the date of exercise to the Option Price, or by a
combination of cash and shares, in full payment of the Option Price for the
number of shares specified in the notice. The exercise may be with respect to
any one or more shares covered by this Option, reserving the remainder for a
subsequent timely exercise. The Company shall make prompt delivery of such
shares, provided that if any law or regulation requires the Company to take any
action with respect to such shares before the issuance thereof, then the date
of delivery of such shares shall be extended for the period necessary to take
such action, and provided further that the Company shall have no obligation to
deliver any such certificate unless and until appropriate provision has been
made for any withholding taxes in respect of such exercise.
4. BAR TO EXERCISE. The Option may not be exercised if such
exercise could constitute a violation of any applicable federal, state or other
law or regulation. The Option may not be exercised after the tenth anniversary
of the effective date of this Agreement.
5. CHANGE IN CONTROL. Notwithstanding anything to the contrary in
this Agreement (except for Section 4) or the Plan, this Option will become
exercisable in full upon a "change in control." For purposes of this Section,
a "change in control" shall arise if, at any time during the Optionee's
employment or consulting relationship with the Company any one or more of the
following events occurs:
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<PAGE> 3
(i) The Company is merged, consolidated or reorganized
into or with another corporation, or other entity and, as a
result thereof, less than 50% of the outstanding stock or other
capital interests of the surviving, resulting or acquiring
corporation, person, or other entity is owned, in the aggregate,
by the stockholder or stockholders of the Company immediately
prior to such merger, consolidation or reorganization; or
(ii) The Company sells all or substantially all of its
business or assets (or both) to any other corporation, person, or
other entity, less than 50% of the outstanding, voting stock or
other capital interests of which are owned, in the aggregate, by
the stockholders of the Company, directly or indirectly,
immediately prior to or after such sale.
6. RIGHTS NOT CONFERRED. The Option shall not be affected by any
change in the nature of Optionee's employment so long as he continues to be
employed by the Company or a subsidiary. Nothing contained in the Plan or in
the Option shall confer upon the Optionee any right with respect to continuance
of employment by the Company or a subsidiary or interfere in any way with the
right of the Company or a subsidiary to terminate the employment of the
Optionee at any time.
7. NONTRANSFERABILITY. No Option granted under the Plan shall be
transferable other than by will or by the laws of decent and distribution.
During the lifetime of the Optionee, an Option shall be exercisable only by him
or by his guardian or legal representative.
8. NO RIGHTS AS A SHAREHOLDER. No Optionee shall have any right as
a shareholder with respect to any shares of Common Stock subject to his Option
prior to the date of issuance to him of a certificate or certificates for such
shares.
9. OPTION SUBJECT TO PLAN. The granting of the Option is being made
pursuant to the Plan and the Option shall be exercisable only in accordance
with the applicable terms of the Plan. The Plan contains certain definitions,
restrictions limitations and other terms and conditions all of which shall be
applicable to this option. ALL THE PROVISIONS OF THE PLAN ARE INCORPORATED
HEREIN BY REFERENCE AND ARE MADE A PART OF THIS AGREEMENT IN THE SAME MANNER AS
IF EACH AND EVERY SUCH PROVISION WERE FULLY WRITTEN INTO THIS AGREEMENT.
Should the Plan become void or unenforceable by operation of law or judicial
decision, this Agreement shall have no force or effect. Nothing set forth in
this Agreement is intended nor shall any of its provisions be construed, to
limit or exclude any definition, restriction, limitation or other term or
condition of the Plan as is relevant to this Agreement and as may be
specifically applied to it by the Committee. In the event of a conflict in the
provisions of this Agreement and the Plan, as a rule of construction the terms
of the Plan shall be deemed superior and apply. The Optionee acknowledges
receipt of a copy of the Plan.
10. GRANT OF OPTION UNDER EXERCISE. If the Option is exercised by
payment in whole or in part of shares of Common Stock, the Company may grant to
the Optionee an option to acquire shares of Common Stock equal to the number of
shares submitted as payment for the exercise of this Option. Such option will
have an option price equal to the fair market value of a share of Common Stock
on the date of grant
-3-
<PAGE> 4
of the option and will have terms substantially similar to this Agreement with
such changes as the Committee, in its sole discretion deems appropriate.
11. SEVERABILITY. If any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, the
remaining provision of this Agreement shall be unaffected and shall remain in
full force and effect in such jurisdiction, and any such invalid or
unenforceable provision shall not be considered invalid or unenforceable in any
other jurisdiction.
12. BINDING EFFECT. This Agreement shall be binding upon the heirs,
executors, administrators and successors of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
- -------------------------------------------
Optionee's Signature
- -------------------------------------------
Name (Print or Type)
- -------------------------------------------
Street Address
- -------------------------------------------
City, State, Zip Code
- ------------------------------------------- -----------------------
Social Security Number Telephone Number
ILEX ONCOLOGY, INC.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
-4-
<PAGE> 1
[FULBRIGHT & JAWORSKI L.L.P. LETTERHEAD]
April 18, 1997
ILEX Oncology, Inc.
11550 IH 10 West, Suite 300
San Antonio, TX 78230-1064
Gentlemen:
We have acted as counsel for ILEX Oncology, Inc., a Delaware corporation
(the "Company"), in connection with the authorization of 1,313,078 shares (the
"Shares") of Common Stock, $.01 par value ("Common Stock"), of the Company,
issued or to be issued pursuant to the ILEX Oncology, Inc. 1995 Stock Option
Plan and the ILEX Oncology, Inc. 1996 Non-Employee Director Stock Option Plan
(the "Plans").
In connection therewith, we have examined, among other things, the
Plans, the Certificate of Incorporation and Bylaws of the Company and the
corporate proceedings with respect to the issuance of the Shares and such other
corporate documents as we have deemed appropriate.
Based on the foregoing, and having due regard for such legal
considerations as we have deemed relevant, we are of the opinion that the
Shares to be issued by the Company pursuant to the terms of the Plan have been
duly authorized by all requisite corporate action and when issued in accordance
with the respective terms thereof, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our names in the Registration
Statement.
The opinions expressed herein are limited exclusively to the laws of the
State of Texas and the federal securities law of the United States of America.
The opinions expressed herein are for your sole benefit and may be
relied upon only by you.
Very truly yours,
/s/ Fulbright & Jaworski L.L.P.
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 21, 1997
included in ILEX Oncology, Inc.'s Registration Statement on Form S-1, as
amended, (No.333-17769) and to all references to our firm included in this
Registration Statement.
/s/ Arthur Andersen LLP
San Antonio, Texas
April 16, 1997
