<PAGE>
As filed with the Securities and Exchange Commission on April 11, 2000
Registration No. 333-
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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INTERMUNE PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 99-3296648
(State of Incorporation) (I.R.S. Employer Identification No.)
1710 GILBRETH ROAD
SUITE 301
BURLINGAME, CA 94010
(650) 409-2020
(Address of principal executive offices)
1999 Equity Incentive Plan
2000 Equity Incentive Plan
2000 Non-Employee Directors' Stock Option Plan
2000 Employee Stock Purchase Plan
---------------------
(Full title of plans)
W. SCOTT HARKONEN, M.D.
CHIEF EXECUTIVE OFFICER AND PRESIDENT
1710 GILBRETH ROAD
SUITE 301
BURLINGAME, CA 94010
(650) 409-2020
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
Copies to:
ALAN C. MENDELSON, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================================
TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Stock Options and Common Stock
(par value $.001) 3,233,834 shares $3.43 to $14.8750 $38,331,151 $10,119.42
================================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are based upon (a) the weighted average exercise price for shares
subject to outstanding options granted pursuant to registrant's 1999
Equity Incentive Plan and (b) the average of the bid and asked price as
of a specified date within 5 business days prior to the date of filing
the registration statement.
(2) This Registration Statement shall cover any additional shares of
Common Stock which become issuable under the 1999 Equity Incentive
Plan, 2000 Equity Incentive Plan, 2000 Non-Employee Directors' Stock
Option Plan and 2000 Employee Stock Purchase Plan set forth herein by
reason of any stock dividend, stock split, recapitalization or any
other similar transaction without receipt of consideration which
results in an increase in the number of shares of the Registrant's
outstanding Common Stock.
<PAGE>
The chart below details the calculation of the registration fee:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------
OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES NUMBER OF SHARES SHARE PRICE
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Shares issuable pursuant to
outstanding options under the 1999
Equity Incentive Plan 853,834 $3.43 (1)(a) $2,928,651
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to the 2000
Equity Incentive Plan 2,000,000 $14.8750 (1)(b) $29,750,000
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to
outstanding options granted under the
2000 Non-Employee Directors' Stock
Option Plan N/A N/A N/A
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to the 2000
Non-Employee Directors' Stock Option
Plan 180,000 $14.8750 (1)(b) $2,677,500
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to
outstanding options granted under the
2000 Employee Stock Purchase Plan N/A N/A N/A
- ----------------------------------------------------------------------------------------------------------------------
Shares issuable pursuant to the 2000
Employee Stock Purchase Plan 200,000 $14.8750 (1)(b) $2,975,000
- ----------------------------------------------------------------------------------------------------------------------
Proposed Maximum Aggregate Offering
Price $38,331,151
- ----------------------------------------------------------------------------------------------------------------------
Registration Fee $10,119.42
- ----------------------------------------------------------------------------------------------------------------------
</TABLE>
Approximate date of commencement of proposed sale to the public: as soon as
practical after this registration statement becomes effective.
1.
<PAGE>
PART II
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Securities and
Exchange Commission are incorporated by reference into this registration
statement:
(a) Registrant's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on March 24, 2000
(file No. 333-96029).
(b) The description of the registrant's Common Stock which is
contained in the Registration Statement on Form 8-A filed on March 6, 2000,
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating such
description.
All reports and other 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Common Stock offered hereby will be
passed upon for the registrant by Cooley Godward LLP, Palo Alto, California.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act of 1933, as amended. Registrant's Bylaws require it to indemnify
its directors and executive officers, and permit registrant to indemnify its
other officers, employees and other agents, to the extent permitted by Delaware
law. The Bylaws also require the registrant to advance litigation expenses in
the case of stockholder derivative actions or other actions, against an
undertaking by the indemnified party to repay such advances if it is ultimately
determined that the indemnified party is not entitled to indemnification.
Registrant has entered into indemnity agreements with each of its
directors and certain officers which provide indemnification under certain
circumstances for acts and omissions which may not be covered by any directors'
and officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
2.
<PAGE>
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the registrant.
4.2* Bylaws of the Company
4.3* Form of Common Stock Certificate
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP (Included in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
99.1* 1999 Equity Incentive Plan and related documents
99.2* 2000 Equity Incentive Plan and Form of Stock Option Grant Notice and Agreement
99.3* 2000 Non-Employee Directors' Stock Option Plan and Form of Nonstatutory Stock Option
99.4* 2000 Employee Stock Purchase Plan and Offering Documents
</TABLE>
- -------------
* Incorporated by reference from the registrant's Registration Statement on Form
S-1, as amended (file No. 333-96029), initially filed with the Securities and
Exchange Commission on February 2, 2000.
ITEM 9. UNDERTAKINGS
1. The undersigned 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 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 (a)(i) and (a)(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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
3.
<PAGE>
(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 herein, 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 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 the 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.
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 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.
4.
<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 Burlingame, State of California, on April 10, 2000.
INTERMUNE PHARMACEUTICALS, INC.
By: /s/ Timothy P. Lynch
-------------------------------------
Timothy P. Lynch
Chief Financial Officer and Vice
President of Business Development
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints W. Scott Harkonen and Timothy P. Lynch,
and each of them, his true and lawful attorney-in-fact, each with the 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, with all
exhibits thereto, and 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 he 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 substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, 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>
Chief Executive Officer, April 10, 2000
/s/ W. Scott Harkonen President and Director
- ---------------------------------- (Principal Executive Officer)
W. Scott Harkonen
/s/ Timothy P. Lynch Vice President and Chief Financial April 10, 2000
- ---------------------------------- Officer (Principal Financial and
Timothy P. Lynch Accounting Officer)
/s/ James I Healy Director April 10, 2000
- ----------------------------------
James I. Healy
/s/ Edgar Engleman Director April 10, 2000
- ----------------------------------
Edgar Engleman
/s/ John L. Higgins Director April 10, 2000
- ----------------------------------
John L. Higgins
/s/ Jonathan S. Leff Director April 10, 2000
- ----------------------------------
Jonathan S. Leff
5.
<PAGE>
/s/ Nicholas J. Simon Director April 10, 2000
- ----------------------------------
Nicholas J. Simon
/s/ Wayne Hockmeyer Director April 10, 2000
- ----------------------------------
Wayne Hockmeyer
</TABLE>
6.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the registrant.
4.2* Bylaws of the Company
4.3* Form of Common Stock Certificate
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Cooley Godward LLP (Included in Exhibit 5.1)
24.1 Power of Attorney (See signature page)
99.1* 1999 Equity Incentive Plan and related documents
99.2* 2000 Equity Incentive Plan and Form of Stock Option Grant Notice and Agreement
99.3* 2000 Non-Employee Directors' Stock Option Plan and Form of Nonstatutory Stock Option
99.4* 2000 Employee Stock Purchase Plan and Offering Documents
</TABLE>
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* Incorporated by reference from the registrant's Registration Statement on Form
S-1, as amended (file No. 333-96029), initially filed with the Securities and
Exchange Commission on February 2, 2000.
7.
<PAGE>
April 11, 2000 Exhibit 5.1
InterMune Pharmaceuticals, Inc.
1710 Gilbreth Road
Suite 301
Burlingame, CA 94010
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by InterMune Pharmaceuticals, Inc. (the "Company") of a
Registration Statement on Form S-8 (the "Registration Statement") with the
Securities and Exchange Commission covering the offering of up to an
aggregate of 3,233,834 shares of the Company's Common Stock, $.001 par value
(the "Shares"), with respect to (i) 853,834 of the shares issuable pursuant
to the Company's 1999 Equity Incentive Plan (the "1999 Incentive Plan") (ii)
2,000,000 of the Shares issuable pursuant to the Company's 2000 Equity
Incentive Plan (the "Incentive Plan"); (iii) 180,000 of the Shares issuable
pursuant to the Company's 2000 Non-Employee Directors' Stock Option Plan (the
"Non-Employee Directors' Plan") and (iv) 200,000 of the Shares issuable
pursuant to the Company's 2000 Employee Stock Purchase Plan (the "Employee
Purchase Plan")
In connection with this opinion, we have examined the Registration Statement and
related prospectus, the Company's Certificate of Incorporation, as amended, and
Bylaws, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have assumed
the genuineness and authenticity of all documents submitted to us as originals,
the conformity to originals of all documents submitted to us as copies, and the
due execution and delivery of all documents, where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the 1999 Incentive
Plan, the Incentive Plan, the Non-Employee Directors' Plan, the Employee
Purchase Plan, and the Registration Statement and related prospectus, will be
validly issued, fully paid, and nonassessable (except as to shares issued
pursuant to certain deferred payment arrangements, which will be fully paid
and nonassessable when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Alan C. Mendelson
----------------------------------
Alan C. Mendelson, Esq.
<PAGE>
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 1999 Equity Incentive Plan, 2000 Equity
Incentive Plan, 2000 Non-Employee Directors' Stock Option Plan and 2000 Employee
Stock Purchase Plan of InterMune Pharmaceuticals, Inc. of our report dated
January 28, 2000, except for the last paragraph in Note 6 to the financial
statements regarding deferred compensation and the paragraphs in Note 12 to the
financial statements regarding stock option grants and stock plans as to which
the date is February 29, 2000, with respect to the financial statements of
InterMune Pharmaceuticals, Inc. included in InterMune Pharmaceuticals, Inc.'s
Registration Statement (Form S-1 No. 333-96029), and related prospectus of
InterMune Pharmaceuticals, Inc., filed with the Securities and Exchange
Commission.
Palo Alto, California
April 7, 2000
