<PAGE>
As filed with the Securities and Exchange Commission
on December 21, 1999
Registration No. 333-_____
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
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)
75 SIDNEY STREET, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices) (Zip Code)
MILLENNIUM BIOTHERAPEUTICS, INC. 1997 EQUITY INCENTIVE PLAN
(Full title of the Plan)
MARK J. LEVIN
CHIEF EXECUTIVE OFFICER
MILLENNIUM PHARMACEUTICALS, INC.
75 SIDNEY STREET
CAMBRIDGE, MASSACHUSETTS 02139
WITH A COPY TO:
David E. Redlick, Esq. John B. Douglas III, Esq.
Kenneth A. Hoxsie, Esq. General Counsel
Hale and Dorr LLP Millennium Pharmaceuticals, Inc.
60 State Street 75 Sidney Street
Boston, Massachusetts 02109 Cambridge, Massachusetts 02139
(617) 526-6000 (617) 679-7000
(Name, address, including zip code, and telephone number,
including area code, of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Title of Maximum Maximum Amount of
Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered Per Share Offering Price Fee
- ---------------- ------------ -------------- -------------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.001 par value 321,000 shares 101.00 (1) 32,421,000 (1) $ 8,560
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market on December 17, 1999 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed to register the
shares of Common Stock of Millennium Pharmaceuticals, Inc. (the "Company" or
"Registrant") issuable pursuant to the Millennium BioTherapeutics, Inc. 1997
Equity Incentive Plan (the "Plan"). On December 21, 1999, pursuant to the terms
of Section 1.9 of the Agreement and Plan of Merger dated as of October 14, 1999
by and between the Company and Millennium BioTherapeutics, Inc. ("Millennium
BioTherapeutics"), the Company assumed the Plan and all of the outstanding
options to purchase Common Stock of Millennium BioTherapeutics issued under the
Plan.
2
<PAGE>
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 Plan 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
The following documents, which are filed with the Securities and
Exchange Commission (the "Commission"), are incorporated in this Registration
Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
report or the prospectus referred to in (1) above.
(3) The description of the common stock of the Registrant, $.001
par value per share (the "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. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this Registration Statement to the extent that a statement contained herein or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
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 102 of the Delaware General Corporation Law allows a
corporation to eliminate the personal liability of directors of a corporation to
the corporation or its stockholders for monetary damages for a breach of
fiduciary duty as a director, except where the director breached his duty of
loyalty, failed to act in good faith, engaged in intentional misconduct or
knowingly violated a law, authorized the payment
3
<PAGE>
of a dividend or approved a stock repurchase in violation of Delaware corporate
law or obtained an improper personal benefit. The Registrant has included such a
provision in its Certificate of Incorporation.
Section 145 of the General Corporation Law of Delaware 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.
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),
judgements, 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 interest 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),
judgment, fines 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 Registrants, 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 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 herein is not
exclusive.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
4
<PAGE>
Item 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ---------- --------------
<S> <C>
4.1 (1) Amended and Restated Certificate of
Incorporation of the Registrant
4.2 (1) Amended and Restated By-Laws of the Registrant
4.3 (2) Specimen certificate for shares of Common Stock
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature page
to this Registration Statement)
</TABLE>
- ------
(1) Incorporated herein by reference from the Registrant's Quarterly Report
on Form 10-Q, filed June 20, 1996 (File No. 0-28494).
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-02490).
Item 9. UNDERTAKINGS
1. The 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; 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
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 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
5
<PAGE>
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.
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 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.
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.
6
<PAGE>
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 this
21st day of December, 1999.
MILLENNIUM PHARMACEUTICALS, INC.
By: /s/ MARK J. LEVIN
----------------------------------
Name: Mark J. Levin
Title: Chief Executive Officer
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Millennium Pharmaceuticals,
Inc., hereby severally constitute and appoint Mark J. Levin, Kevin P. Starr and
John B. Douglas III, and each of them singly, our true and lawful attorneys with
full power to any of them, and to 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 pre-effective and post-effective amendments to
said Registration Statement and generally to do all such things in our name and
behalf in our capacities as officers and directors to enable Millennium
Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or any of them, to said Registration Statement and any and all
amendments thereto.
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Mark J. Levin Chief Executive Officer and Director December 21, 1999
- ------------------------------------- (Principal Executive Officer)
Mark J. Levin
/s/ Kevin P. Starr Chief Financial Officer (Principal December 21, 1999
- ------------------------------------- Financial and Accounting Officer)
Kevin P. Starr
/s/ Joshua Boger Director December 21, 1999
- -------------------------------------
Joshua Boger, Ph.D.
/s/ Eugene Cordes Director December 21, 1999
- -------------------------------------
Eugene Cordes
</TABLE>
7
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ A. Grant Heidrich III Director December 21, 1999
- -------------------------------------
A. Grant Heidrich III
/s/ Raju S. Kucherlapati Director December 21, 1999
- -------------------------------------
Raju S. Kucherlapati
/s/ Eric S. Lander Director December 21, 1999
- -------------------------------------
Eric S. Lander
/s/ Steven C. Wheelwright Director December 21, 1999
- -------------------------------------
Steven C. Wheelwright
</TABLE>
8
<PAGE>
EXHIBIT INDEX
---------------------
<TABLE>
<CAPTION>
Exhibit
Number Description
- ---------- --------------
<S> <C>
4.1 (1) Amended and Restated Certificate of
Incorporation of the Registrant
4.2 (1) Amended and Restated By-Laws of the Registrant
4.3 (2) Specimen certificate for shares of Common Stock
5.1 Opinion of Hale and Dorr LLP
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on the signature page
to this Registration Statement)
</TABLE>
- ------
(1) Incorporated herein by reference from the Registrant's Quarterly Report on
Form 10-Q, filed June 20, 1996 (File No. 0-28494).
(2) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-02490).
9
<PAGE>
EXHIBIT 5.1
HALE AND DORR LLP
COUNSELLORS AT LAW
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
617-526-6000 - FAX 617-526-5000
December 21, 1999
Millennium Pharmaceuticals, Inc.
75 Sidney Street
Cambridge, Massachusetts 02139
Re: Millennium BioTherapeutics, Inc. 1997 Equity Incentive Plan
Gentlemen:
This opinion is furnished to you in connection with a Registration
Statement on Form S-8 (the "Registration Statement") to be filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Securities Act"), for the registration of 321,000
shares of Common Stock, $.001 par value per share (the "Shares"), of Millennium
Pharmaceuticals, Inc., a Delaware corporation (the "Company"), issuable pursuant
to the Millennium BioTherapeutics, Inc. 1997 Equity Incentive Plan (the "Plan").
We have examined the Amended and Restated Certificate of Incorporation
and the Amended and Restated By-laws of the Company and originals, or copies
certified to our satisfaction, of all pertinent records of the meetings of the
directors and stockholders of the Company, the Registration Statement 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 copies, the authenticity of the originals of such latter documents and
the legal competence of all signatories to such documents.
We express no opinion herein as to the laws of any state or
jurisdiction other than the state laws of the Commonwealth of Massachusetts, the
Delaware General Corporation Law statute and the federal laws of the United
States of America.
Based upon and subject to the foregoing, we are of the opinion that the
Company has duly authorized for issuance the Shares, and the Shares, when issued
and paid for in accordance with the terms of the Plan and at a price per share
in excess of the par value per share for such Shares, will be validly issued,
fully-paid and nonassessable.
WASHINGTON, D.C. BOSTON, MA London, UK*
- ---------------- ------------ ------------
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE>
Millennium Pharmaceuticals, Inc.
December 21, 1999
Page 2
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you
of any change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matters.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such
consent, we do not hereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act or the rules and
regulations of the Commission.
Very truly yours,
/s/ HALE AND DORR LLP
HALE AND DORR LLP
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the registration of 321,000 shares of common stock
under the Millennium Biotherapeutics, Inc. 1997 Equity Incentive Plan of our
report dated February 9, 1999, with respect to the consolidated financial
statements of Millennium Pharmaceuticals, Inc. included in its Annual Report
(Form 10-K) for the year ended December 31, 1998, filed with the Securities
and Exchange Commission.
ERNST & YOUNG LLP
Boston, Massachusetts
December 20, 1999
