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As filed with the Securities and Exchange Commission
November 1, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MILLENNIUM PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3177038
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
640 MEMORIAL DRIVE
CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices) (Zip Code)
1996 DIRECTOR OPTION PLAN
(Full title of the plan)
MARK J. LEVIN
CHIEF EXECUTIVE OFFICER
MILLENNIUM PHARMACEUTICALS, INC.
640 MEMORIAL DRIVE
CAMBRIDGE, MASSACHUSETTS 02139
(NAME AND ADDRESS OF AGENT FOR SERVICE)
(617) 679-7000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
Title of Securities Amount to be maximum offering maximum aggregate Amount of
to be Registered Registered price per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 250,000 shares(1) $19.6875(2) $4,921,875(2) $1,492(3)
==================================================================================================================================
<FN>
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(1) To be offered by the Registrant pursuant to the Plan described herein.
(2) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Registrant's
Common Stock on the Nasdaq National Market on October 29, 1996 in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933.
(3) Computed in accordance with Securities Act Rules 457(c) and (h).
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1996 Director Option Plan of Millennium Pharmaceuticals,
Inc., a Delaware corporation (the "Registrant") pursuant to Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are filed with the
Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to Section 13(a)
or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains, either directly
or by incorporation by reference, audited financial statements for the
Registrant's latest fiscal year for which such statements have been
filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the Common Stock, par value $.001 per share
("Common Stock"), contained in the Registrant's Registration Statement
on Form 8-A filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
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Not applicable.
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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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Article EIGHTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that no director of the Registrant shall be personally
liable for any monetary damages for any breach of fiduciary duty as a director,
except to the extent that the Delaware General Corporation Law prohibits the
elimination or limitation of liability of directors for breach of fiduciary
duty.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement incurred in connection with any
litigation or other legal proceeding (other than an action by or in the right of
the Registrant) brought against him by virtue of his position as a director or
officer of the Registrant if 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, with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the Registrant brought against him by virtue of his position as a
director or officer of the Registrant if 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, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a Director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
Indemnification is required to be made promptly unless the Registrant
determines that the applicable standard of conduct required for indemnification
has not been met. In the event the Registrant denies a request for
indemnification, or if the Registrant fails to dispose of a request for
indemnification within 60 days after such payment is claimed by the indemnitee,
such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director or officer
must give the Registrant
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notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the Registrant's Amended and Restated Certificate of
Incorporation further provides that the indemnification provided therein is not
exclusive.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
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1. The 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
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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; 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 (i) and (ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and 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(a) or Section 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(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 therein, 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 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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3. 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Cambridge, Commonwealth of Massachusetts on the 31st
day of October, 1996.
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ Mark J. Levin
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Mark J. Levin
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Millennium Pharmaceuticals,
Inc. hereby severally constitute Mark J. Levin, Harry F. Arader, Jr. and Steven
D. Singer, and each of them singly, our true and lawful attorneys with full
power to them, and each of them singly, to sign for us and in our names in the
capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable Millennium Pharmaceuticals, Inc. to comply with
all requirements of the Commission, hereby ratifying and confirming our
signatures as they may be signed by said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the dates indicated.
Signature Title Date
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/s/ Mark J. Levin Chief Executive Officer and October 31, 1996
- --------------------------- Director (Principal Executive
Mark J. Levin Officer)
/s/ Harry F. Arader, Jr. Chief Financial Officer October 31, 1996
- --------------------------- (Principal Financial and
Harry F. Arader, Jr. Accounting Officer)
/s/ Joshua Boger Director October 31, 1996
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Joshua Boger
/s/ Eugene Cordes Director October 31, 1996
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Eugene Cordes
/s/ A. Grant Heidrich, III Director October 31, 1996
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A. Grant Heidrich, III
/s/ William W. Helman Director October 31, 1996
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William W. Helman
/s/ Raju Kucherlapati Director October 31, 1996
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Raju Kucherlapati
/s/ Eric Lander Director October 31, 1996
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Eric Lander
/s/ Michael Steinmetz Director October 31, 1996
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Michael Steinmetz
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EXHIBIT INDEX
Exhibit Number Description
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4.1 Amended and Restated Certificate of Incorporation of the
Registrant (incorporated herein by reference to Exhibit 4.1 to
the Registrant's Quarterly Report on Form 10-Q, filed June 20,
1996).
4.2 Restated By-Laws of the Registrant (incorporated herein by
reference to Exhibit 4.2 to the Registrant's Quarterly Report on
Form 10-Q, filed June 20, 1996).
4.3 Specimen Certificate representing shares of the Registrant's
$.001 par value Common Stock (incorporated herein by reference to
Exhibit 4.1 to Amendment No. 2 to the Registrant's Registration
Statement on Form S-1, filed May 2, 1996).
5.1* Opinion of Hale and Dorr.
23.2* Consent of Ernst & Young LLP.
24.1* Consent of Hale and Dorr (included in Exhibit 5.1).
25.1* Power of Attorney (see signature pages of this Registration
Statement).
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* Filed herewith. All other exhibits previously filed.
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Exhibit 5.1
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Hale and Dorr
60 State Street
Boston, Massachusetts 02109
October 31, 1996
Millennium Pharmaceuticals, Inc.
640 Memorial Drive
Cambridge, MA 02139
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 250,000 shares of Common Stock, $.001 par value per share
(the "Shares"), of Millennium Pharmaceuticals, Inc., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Director Option Plan (the "Plan").
We have examined the Amended and Restated Certificate of Incorporation and
Restated By-Laws of the Company, the Registration Statement and originals, or
copies certified to our satisfaction, of all pertinent records of the meetings
of the directors and stockholders of the Company and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized for issuance under the Plans and the Shares, when issued in
accordance with the terms of the Plans, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an Exhibit to the Registration Statement.
Very truly yours,
/s/ HALE AND DORR
HALE AND DORR
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Exhibit 23.2
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CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITOR
We consent to the incorporation by reference in this Registration Statement
Form S-8 pertaining to the 1996 Director Option Plan of Millennium
Pharmaceuticals, Inc. of our report dated January 26, 1996 (except for Note 10,
as to which the date is April 12, 1996), with respect to the financial
statements of Millennium Pharmaceuticals, Inc. included in its Registration
Statement on Form S-1 (File No. 333-2490), filed with the Securities and
Exchange Commission.
/s/ Ernst & Young
Ernst & Young
Boston, Massachusetts
October 30, 1996
