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As filed with the Securities and Exchange Commission on October 23, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABGENIX, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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<S> <C> <C>
DELAWARE 2836 94-3248826
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
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7601 DUMBARTON CIRCLE
FREMONT, CA 94555
(510) 608-6500
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
1996 INCENTIVE STOCK PLAN
1998 EMPLOYEE STOCK PURCHASE PLAN
1998 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
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R. SCOTT GREER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ABGENIX, INC.
7601 DUMBARTON CIRCLE
FREMONT, CA 94555
(510) 608-6500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies to:
MARIO M. ROSATI, ESQ.
CHRIS F. FENNELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(650) 493-9300
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. |X|
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED PROPOSED
TO BE MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF REGISTERED OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED (SHARES) PER SHARE OFFERING PRICE REGISTRATION FEE
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1996 Incentive Stock Plan
Common Stock, $0.001 par value
(currently outstanding options) (1)......... 1,689,627 $ 2.157 $ 3,644,525.44 $ 1,013.18
1996 Incentive Stock Plan
Common Stock, $0.001 par value
(options available for future grant) (2).... 864,192 $ 6.063 $ 5,239,596.10 $ 1,456.61
TOTAL 1996 STOCK PLAN SHARES REGISTERED 2,553,819 $ 8,884,121.54 $ 2,469.79
1998 Employee Stock Purchase Plan
Common Stock, $0.001 par value (3).......... 250,000 $ 5.154 $ 1,288,387.50 $ 358.17
1998 Director Option Plan
Common Stock, $0.001 par value (4).......... 250,000 $ 6.063 $ 1,515,750.00 $ 421.38
TOTAL REGISTRATION FEES $ 3,249.34
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(1) The Proposed Maximum Offering Price Per Share has been computed in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee and is based upon the weighted
average exercise price per share of approximately $2.157 as to 1,689,627
outstanding but unexercised options to purchase Common Stock under the 1996
Incentive Stock Plan (the "Currently Outstanding Options").
(2) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act of 1933 as to the
remaining 864,192 shares of Common Stock authorized for issuance pursuant
to the 1996 Incentive Stock Plan, solely for the purpose of calculating the
registration fee. No options have been granted with respect to such shares.
The computation is based upon the average of the high and low price of the
Common Stock as reported on the Nasdaq National Market on October 5, 1998
because the price at which the options to be granted in the future may be
exercised is not currently determinable.
(3) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(h) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. The computation is based upon
85% (see explanation in following sentence) of the average of the high and
low price of the Common Stock as reported on the Nasdaq National Market on
October 5, 1998 because the price at which the options to be granted in the
future may be exercised is not currently determinable. Pursuant to the 1998
Employee Stock Purchase Plan, which plan is incorporated by reference
herein, the Purchase Price of a share of Common Stock shall mean an amount
equal to 85% of the Fair Market Value of a share of Common Stock on the
Enrollment Date or the Exercise Date, whichever is lower.
(4) The Proposed Maximum Offering Price Per Share has been estimated in
accordance with Rule 457(c) under the Securities Act of 1933 solely for the
purpose of calculating the registration fee. No options have been granted
with respect to such shares. The computation is based upon the average of
the high and low price of the Common Stock as reported on the Nasdaq
National Market on October 5, 1998 because the price at which the options
to be granted in the future may be exercised is not currently determinable.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Prospectus, dated July 2, 1998, filed pursuant to
Rule 424(b)(1) under the Securities Act of 1933 on July 2, 1998 and
the supplement thereto, dated July 15, 1998, filed pursuant to Rule
424(b)(3) of the Securities Act of 1933 on July 15, 1998.
(b) The Registrant's Current Report on Form 8-K filed pursuant to Section
13(a) of the Securities Exchange Act of 1934 (the "Exchange Act") on
July 17, 1998.
(c) The Registrant's Quarterly Report on Form 10-Q filed pursuant to
Section 13(a) of the Exchange Act on August 17, 1998.
(d) The description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on May 5, 1998.
(e) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of
this Registration Statement 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 the
Registration Statement and to be 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 has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemni fication of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities
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Act of 1933 (the "Securities Act"). The Registrant has entered into
indemnification agreements to such effect with its officers and directors
containing provisions which are in some respects broader than the specific
indemnification provisions contained in the General Corporation Law of Delaware.
The indemnification agreements may require the Company, among other things, to
indemnify such officers and directors against certain liabilities that may arise
by reason of their status or service as directors or officers (other than
liabilities arising from willful misconduct of a culpable nature) and to advance
their expenses incurred as a result of any proceeding against them as to which
they could be indemnified.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits listed on the accompanying Index to Exhibits are filed as part
hereof, or incorporated by reference into, this Registration Statement. (See
Exhibit Index below).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(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 therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (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 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 an initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the 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 Act and
will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Fremont, State of California on October 23, 1998.
ABGENIX, INC.
By: /s/ R. SCOTT GREER
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R. Scott Greer
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints R. Scott Greer and Kurt W. Leutzinger,
jointly and severally, his or her attorneys-in-fact, each with the power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his substitute or substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
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SIGNATURE TITLE DATE
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/S/ R. SCOTT GREER President, Chief Executive Officer and October 23, 1998
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(R. Scott Greer) Director (Principal Executive Officer)
/S/ KURT LEUTZINGER Vice President, Finance and Chief October 23, 1998
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(Kurt Leutzinger) Financial Officer (Principal Financial
and Accounting Officer)
/S/ STEPHEN A. SHERWIN Chairman of the Board of Directors October 23, 1998
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(Stephen A. Sherwin)
/S/ M. KATHLEEN BEHRENS, PH.D. Director October 23, 1998
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(M. Kathleen Behrens, Ph.D.)
/S/ RAJU S. KUCHERLAPATI, PH.D. Director October 23, 1998
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(Raju S. Kucherlapati, Ph.D.)
/S/ MARK B. LOGAN Director October 23, 1998
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(Mark B. Logan)
/S/ JOSEPH E. MAROUN Director October 23, 1998
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(Joseph E. Maroun)
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* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant.
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INDEX TO EXHIBITS
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Exhibit Number Exhibit Document
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4.1* 1996 Incentive Stock Plan
4.2* 1998 Employee Stock Purchase Plan
4.3* 1998 Director Option Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered (Counsel to the Registrant)
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see page II-4)
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* Incorporated by reference to Exhibits 10.2, 10.3 and 10.4, respectively, of
the Company's Registration Statement on Form S-1 (File No. 333-49415), effective
July 2, 1998.
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
EXHIBIT 5.1
October 23, 1998
Abgenix, Inc.
7601 Dumbarton Circle
Fremont, CA 94555
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about October 23, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the 1996 Incentive Stock Plan (as to
2,553,819 shares), the 1998 Employee Stock Purchase Plan (as to 250,000 shares)
and the 1998 Director Option Plan (as to 250,000 shares) (collectively, the
"Plans" and the "Shares" as appropriate). As legal counsel for Abgenix, Inc., we
have examined the proceedings taken and are familiar with the proceedings
proposed to be taken by you in connection with the issuance and sale of the
Shares pursuant to the Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ WILSON SONSINI GOODRICH & ROSATI
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EXHIBIT 23.1
[LETTERHEAD OF ARTHUR ANDERSEN LLP]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1996 Incentive Stock Plan, the 1998 Employee Stock
Purchase Plan and the 1998 Director Option Plan of Abgenix, Inc. of our report
dated January 23, 1998 with respect to the financial statements of Abgenix, Inc.
for the year ended December 31, 1997 included in the Registration Statement on
Form S-1 (No. 333-49415) and related Prospectus dated July 2, 1998 filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, CA
October 21, 1998
