As filed with the Securities and Exchange Commission on April 27, 2000
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
PRAECIS PHARMACEUTICALS INCORPORATED
- ----------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 04-3200305
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Hampshire Street, Cambridge, Massachusetts 02139-1572
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(Address of Principal Executive Offices) (Zip Code)
PRAECIS PHARMACEUTICALS INCORPORATED SECOND AMENDED AND
RESTATED 1995 STOCK PLAN
AND
EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Malcolm L. Gefter, Ph.D.
Chairman of the Board,
Chief Executive Officer and President
PRAECIS PHARMACEUTICALS INCORPORATED
One Hampshire Street
Cambridge, Massachusetts 02139-1572
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(Name and address of agent for service)
(617) 494-8400
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(Telephone number, including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================================================================================
Title of Proposed Maximum Proposed Maximum Amount of
Securities to Amount to be Offering Price Aggregate Registration
be Registered Registered Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, 1,258,088 (1) $10.00 (2) $12,580,880.00 (2)
par value $.01 560,500 $0.13 (3) $72,865.00 (3)
per share 1,700,876 $0.27 (3) $459,236.52 (3)
25,764 $0.40 (3) $10,305.60 (3)
9,250 $1.33 (3) $12,302.50 (3)
422,640 $1.60 (3) $676,224.00 (3)
679,274 $3.71 (3) $2,520,106.54 (3)
1,235,764 $4.00 (3) $4,943,056.00 (3)
219,200 $4.76 (3) $1,043,392.00 (3)
2,234,368 $6.38 (3) $14,255,267.84 (3)
302,000 $7.00 (3) $2,114,000.00 (3)
604,930 $14.50 (3) $8,771,485.00 (3)
- ----------------------------------------------------------------------------------------
Total 9,252,654 (4) $47,459,121.00 $12,530.00
========================================================================================
</TABLE>
(1) Includes 1,098,088 shares issuable under the Second Amended and
Restated 1995 Stock Plan and 160,000 shares issuable under the Employee
Stock Purchase Plan.
(2) As set forth in Rule 457(c) and (h) under the Securities Act of 1933,
as amended (the "Securities Act"), based upon the initial public
offering price of $10.00 per share set forth in the Prospectus, dated
April 26, 2000, relating to the Registrant's initial public offering of
Common Stock.
(3) As set forth in Rule 457(h)(l) of the Securities Act, based on the
price at which the options may be exercised.
Of the 9,092,654 shares being registered hereunder for issuance under
the Second Amended and Restated 1995 Stock Plan: (i) 560,500 shares are
subject to presently outstanding options exercisable at $0.13 per
share; (ii) 1,700,876 shares are subject to presently outstanding
options exercisable at $0.27 per share; (iii) 25,764 shares are subject
to presently outstanding options exercisable at $0.40 per share; (iv)
9,250 shares are subject to presently outstanding options exercisable
at $1.33 per share; (v) 422,640 shares are subject to presently
outstanding options exercisable at $1.60 per share; (vi) 679,274 shares
are subject to presently outstanding options exercisable at $3.71 per
share; (vii) 1,235,764 shares are subject to presently outstanding
options exercisable at $4.00 per share; (viii) 219,200 shares are
subject to presently outstanding options exercisable at $4.76 per
share; (ix) 2,234,368 shares are subject to presently outstanding
options exercisable at $6.38 per share; (x) 302,000 shares are subject
to presently outstanding options exercisable at $7.00 per share; and
(xi) 604,930 shares are subject to presently outstanding options
exercisable at $14.50 per share. The remaining 1,098,088 shares are not
subject to outstanding awards and are covered in footnote (1) above.
(4) The aggregate number of shares to be registered is subject to
adjustment by reason of stock splits, stock dividends and other events
pursuant to the terms of the Second Amended and Restated 1995 Stock
Plan and the Employee Stock Purchase Plan. Accordingly, pursuant to
Rule 416 under the Securities Act, this Registration Statement covers,
in addition to the number of shares of Common Stock shown in the table
above, an indeterminate number of shares which may be subject to grant
or otherwise issuable after the operation of the provisions of the
Second Amended and Restated 1995 Stock Plan and the Employee Stock
Purchase Plan governing such adjustments. In addition, pursuant to
Instruction F to this Form S-8 and Rule 416(c) under the Securities
Act, this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the Employee Stock Purchase
Plan referred to herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
There are incorporated herein by reference (i) the prospectus
filed pursuant to Rule 424(b) of the Securities Act relating to the
Registration Statement on Form S-1 (Registration No. 333-96351) of PRAECIS
PHARMACEUTICALS INCORPORATED (the "Registrant"), containing audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed by the Registrant with the Securities and
Exchange Commission, (ii) all other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), since the end of the fiscal year covered
by the document referred to in (i) above and (iii) the description of the
common stock, par value $.01 per share, of the Registrant contained in the
Registrant's registration statement 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 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.
-----------------------------------------
The Registrant's Amended and Restated Certificate of
Incorporation (the "Restated Certificate") and Amended and Restated By-Laws
(the "Restated By-Laws") provide that the Registrant will indemnify its
directors and officers to the fullest extent authorized or permitted by
law. Section 145 of the Delaware General Corporation Law (the "DGCL")
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.
The Registrant's Restated Certificate further provides that no
director will be personally liable for monetary damages for breach of
fiduciary duty, except to the extent such exemption is not permitted by
law. Section 102 of the DGCL provides that officers and directors will not
be personally liable for monetary damages for breach of their fiduciary
duties as directors, except liability for (i) any breach of their duty of
loyalty to the corporation or its stockholders; (ii) acts or omissions not
in good faith or which involve intentional misconduct or a knowing
violation of law; (iii) unlawful payments of dividends or unlawful stock
repurchases or redemptions; or (iv) any transaction from which the director
derived an improper personal benefit. This provision has no effect on any
non-monetary remedies that may be available to the Registrant or its
stockholders, nor does it relieve the Registrant of its officers or
directors from compliance with federal or state securities laws.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions or
otherwise, the Registrant has been informed 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.
The Restated By-Laws also permit the Registrant to purchase and
maintain insurance on behalf of any officer or director for any liability
arising out of his or her actions in such capacity, regardless of whether
the Restated By-Laws would otherwise permit indemnification for that
liability. The Registrant has obtained directors' and officers' liability
insurance which indemnifies directors and officers of the Registrant
against damages arising out of claims which might be made against them
based on their negligent acts or omissions while acting in their capacity
as officers and directors.
Under agreements with J.H. Whitney & Co. and affiliated
entities, William Laverack, Jr., a director, is indemnified for certain
liabilities which he may incur in his capacity as a director.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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Exhibit
Number Description
- ------- -----------
4.1* Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Amended and Restated By-Laws of the Registrant
4.3* Specimen Certificate representing shares of Common Stock of
the Registrant
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Ernst and Young LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement)
24 Power of Attorney (included on the signature page of this
Registration Statement)
99.1* Second Amended and Restated 1995 Stock Plan
99.2* Employee Stock Purchase Plan
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* Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1, as amended (Registration No. 333-96351).
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 of 1933;
(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 State ment. 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 and
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 distribu tion not previously disclosed in the
Registration Statement or any materi al change to such
information set forth in the Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
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 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in this Registration State ment 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.
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 described
under Item 6 above, 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.
SIGNATURES
The Registrant. 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
Cambridge, State of Massachusetts, on April 27, 2000.
PRAECIS PHARMACEUTICALS INCORPORATED
By /s/ Kevin F. McLaughlin
------------------------------------
Kevin F. McLaughlin
Chief Financial Officer, Senior Vice
President, Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the persons whose
signatures appear below, constitute and appoint Malcolm L. Gefter, Ph.D.,
Chairman of the Board, Chief Executive Officer and President, and Kevin F.
McLaughlin, Chief Financial Officer, Senior Vice President, Treasurer and
Secretary, and each of them individually, as their true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for them and in their names, places and steads, 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 the 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 they 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 or her
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
---------------
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed by the following
persons in the capacities indicated on April 27, 2000.
Signature Title
/s/ Malcolm L. Gefter, Ph.D. Chairman of the Board, Chief Executive
- -------------------------------- Officer and President
Malcolm L. Gefter, Ph.D. (Principal Executive Officer)
/s/ Kevin F. McLaughlin Chief Financial Officer, Senior Vice
- -------------------------------- President, Treasurer and Secretary
Kevin F. McLaughlin (Principal Financial and Accounting
Officer)
/s/ G. Leonard Baker, Jr. Director
- --------------------------------
G. Leonard Baker, Jr.
/s/ William Laverack, Jr. Director
- --------------------------------
William Laverack, Jr.
/s/ Henry F. McCance Director
- --------------------------------
Henry F. McCance
/s/ David B. Sharrock Director
- --------------------------------
David B. Sharrock
/s/ Damion E. Wicker, M.D. Director
- --------------------------------
Damion E. Wicker, M.D.
/s/ Albert L. Zesiger Director
- --------------------------------
Albert L. Zesiger
EXHIBIT INDEX
PRAECIS PHARMACEUTICALS INCORPORATED
Exhibit
Number Description
- ------- -----------
4.1* Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Amended and Restated By-Laws of the Registrant
4.3* Specimen Certificate representing shares of Common Stock of
the Registrant
5.1 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
23.1 Consent of Ernst and Young LLP
23.2 Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained
in the opinion filed as Exhibit 5.1 to this Registration
Statement)
24 Power of Attorney (included on the signature page of this
Registration Statement)
99.1* Second Amended and Restated 1995 Stock Plan
99.2* Employee Stock Purchase Plan
- --------------
* Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1, as amended (Registration No. 333-96351).
Exhibit 5.1
[Letterhead of
Skadden, Arps, Slate, Meagher & Flom LLP
One Beacon Street
Boston, Massachusetts 02108-3194
(617) 573-4800]
April 27, 2000
PRAECIS PHARMACEUTICALS INCORPORATED
One Hampshire Street
Cambridge, Massachusetts 02139-1572
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as special counsel to PRAECIS PHARMACEUTICALS
INCORPORATED, a Delaware corporation (the "Registrant"), in connection with
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement"), for the purpose of registering with the Securities and
Exchange Commission (the "Commission"), under the Securities Act of 1933,
as amended (the "Securities Act"): (i) 160,000 shares (the "Stock Purchase
Shares") of common stock, par value $.01 per share ("Common Stock"), of the
Registrant issuable upon the exercise of options ("Stock Purchase Plan
Options") which may be granted under the Registrant's Employee Stock
Purchase Plan (the "Stock Purchase Plan"); and (ii) 9,092,654 shares of
Common Stock (the "Option Shares" and, together with the Stock Purchase
Shares, the "Shares") issuable upon the exercise of options ("Stock Plan
Options" and, together with Stock Purchase Plan Options, "Options") granted
or which may be granted under the Registrant's Second Amended and Restated
1995 Stock Plan (the "1995 Stock Plan").
This opinion is being furnished in accordance with the
requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
In connection with this opinion, we have examined originals or
copies, certified or otherwise identified to our satisfaction, of (i) the
Registration Statement as filed with the Commission on the date hereof,
(ii) the Stock Purchase Plan, (iii) the 1995 Stock Plan, (iv) the Amended
and Restated Certificate of Incorporation and the Amended and Restated
By-Laws of the Registrant, each as currently in effect, (v) a specimen
certificate representing the Common Stock (the "Specimen Certificate") and
(vi) certain resolutions adopted by the Board of Directors of the
Registrant relating to the issuance of the Shares and certain related
matters. We have also examined originals or copies, certified or otherwise
identified to our satisfaction, of such records of the Registrant and such
agreements, certificates of public officials, certificates of officers or
other representatives of the Registrant and others, and such other
documents, certificates and records as we have deemed necessary or
appropriate as a basis for the opinions set forth herein.
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies, and the authenticity of the originals of such copies.
In making our examination of documents executed or to be executed by
parties other than the Registrant, we have assumed that such parties had or
will have the power, corporate or other, to enter into and perform all
obligations thereunder and have also assumed the due authorization by all
requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof on
such parties. As to any facts material to the opinion expressed herein
which we have not independently established or verified, we have relied
upon oral or written statements and representations of officers and other
representatives of the Registrant and others.
We have also assumed for purposes of this opinion that any
option agreement or other instrument setting forth the terms of any Option
(each, an "Option Agreement") is consistent with the Stock Purchase Plan or
the 1995 Stock Plan, as applicable, was duly authorized, and, if
applicable, validly executed and delivered by the parties thereto, and that
the consideration received by the Registrant for the Shares delivered
pursuant to the exercise of each such Option will be in an amount at least
equal to the par value of such Shares.
The opinion expressed herein is limited to the General
Corporation Law of the State of Delaware, and we express no opinion as to
the laws of any other jurisdiction.
Based upon and subject to the foregoing, we are of the opinion
that the Shares have been duly authorized for issuance and, when Shares
have been paid for and certificates therefor in the form of the Specimen
Certificate have been issued and delivered pursuant to the exercise, in
accordance with the terms of the Stock Purchase Plan or the 1995 Stock Plan
and the applicable Option Agreement, of an Option duly granted under the
Stock Purchase Plan or the 1995 Stock Plan, such Shares will be validly
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Commission as an exhibit to the Registration Statement. In giving such
consent, we do not thereby admit that we are included in the category of
persons whose consent is required under Section 7 of the Securities Act or
the rules and regulations of the Commission promulgated thereunder.
This opinion is furnished by us, as your special counsel, in
connection with the filing of the Registration Statement with the
Commission and, except as provided in the immediately preceding paragraph,
is not to be used, circulated, quoted or otherwise referred to for any
other purpose or relied upon by any other person without our prior written
permission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the PRAECIS PHARMACEUTICALS
INCORPORATED Second Amended and Restated 1995 Stock Plan and Employee Stock
Purchase Plan, of our report dated February 2, 2000, with respect to the
financial statements of PRAECIS PHARMACEUTICALS INCORPORATED included in
Amendment No. 6 to its Registration Statement (Form S-1 No. 333-96351),
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
April 26, 2000
