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As filed with the Securities and Exchange Commission on June 29, 2000
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ANTIGENICS INC.
(Exact Name of Registrant as Specified in its Charter)
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DELAWARE 06-1562417
(State or Other Jurisdiction of Incorporation) (I.R.S. Employer Identification No.)
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630 FIFTH AVENUE, SUITE 2100, NEW YORK, NEW YORK 10111
(Address of Principal Executive Offices)
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
GARO H. ARMEN, PH.D.
Chief Executive Officer
Antigenics Inc.
630 Fifth Avenue, Suite 2100
New York, New York 10111
(212) 332-4774
(Name, Address and Telephone Number of Agent for Service)
with copies to:
MICHAEL LYTTON, ESQ.
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum Amount of
Title of each class of securities to be Amount to be offering price per aggregate offering registration
registered registered(1) share(2) price(2) fee
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Common Stock, $0.01 par value 300,000 shares $14.516 $4,354,800 $1,150
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(1) Pursuant to Rule 416 under the Securities Act of 1933, to the extent
additional shares of our common stock may be issued or issuable as a result
of a stock split or other distribution declared at any time by the Board of
Directors while this registration statement is in effect, this registration
statement is hereby deemed to cover all such additional shares of common
stock.
(2) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h)(1). The proposed maximum offering price
per share indicated equals the last per share sale price of Antigenics
common stock on June 22, 2000 as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents previously filed with the Securities and
Exchange Commission are incorporated by reference herein and shall be deemed as
part hereof:
(a) the prospectus contained in our registration statement on Form
S-1 (File No. 333-37820) filed under the Securities Act of
1933, as amended, (the "Securities Act") on May 25, 2000, as
it may be amended from time to time;
(b) our quarterly report on Form 10-Q for the quarter ended March
31, 2000 filed under the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") on May 15, 2000 (File No.
000-29089); and
(c) the description of our common stock contained in our
Registration Statement on Form 8-A filed on January 24, 2000,
including any amendment or report filed hereafter for the
purpose of updating such description.
All documents filed after the date of this registration statement
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934 and
prior to the filing of a post-effective amendment that indicates that all shares
of common stock offered hereunder have been sold or that deregisters all shares
of common stock remaining unsold shall be deemed to be incorporated by reference
herein and to be a part hereof 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.
Not applicable.
ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, other than
an action by or in the right of the corporation, by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation or is
or was serving at the corporation's request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with the action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of the corporation as well, but only to the extent of expenses, including
attorneys' fees but excluding judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the person in connection with the defense or
settlement of the action or suit. In these actions no indemnification shall be
made in the event of any adjudication of negligence or misconduct in the
performance of his duties to the corporation, unless a court believes that in
light of all the circumstances indemnification should apply.
Article V of Antigenics' By-laws provides that Antigenics shall, to the
extent legally permitted, indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that he is or was, or has agreed to
become, a director or officer of
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Antigenics, or is or was serving, or has agreed to serve, at the request of
Antigenics, as a director, officer or trustee of, or in a similar capacity with,
another corporation, partnership, joint venture, trust or other enterprises. The
indemnification provided for in Article V is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons.
Section 145(g) of the Delaware General Corporation Law and Article V of
By-laws of Antigenics provide that the company shall have the power to purchase
and maintain insurance on behalf of its officers, directors, employees and
agents, against any liability asserted against and incurred by such persons in
any such capacity.
Antigenics has entered into indemnification agreements with each of its
directors and executive officers and has obtained insurance covering its
directors and officers against losses and insuring Antigenics against certain of
its obligations to indemnify its directors and officers.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation may eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of the State of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. No such provision shall
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when such provision becomes effective.
Pursuant to the Delaware General Corporation Law, Section 7 of Article
FIFTH of the Certificate of Incorporation of Antigenics eliminates a director's
personal liability for monetary damages to Antigenics and its stockholders for
breach of fiduciary duty as a director, except in circumstances involving a
breach of the director's duty of loyalty to Antigenics or its stockholders, acts
or omissions not in good faith, intentional misconduct, knowing violations of
the law, self-dealing or the unlawful payment of dividends or repurchase of
stock.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Exhibit Index immediately following signature pages.
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:
(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 this registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth in this
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in this
registration statement; provided, however, that paragraphs (a) (1) (i) and (a)
(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 by the Registrant
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pursuant to Section 13 or Section 15(d) of the Exchange Act of 1934 that are
incorporated by reference in this 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.
(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
Exchange Act of 1934 that is incorporated by reference in this 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 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 provisions referred to in Item 6
hereof, 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 of 1933 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 directors,
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 of 1933 and will be governed by the final
jurisdiction of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has duly caused this Registration Statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the Town of Woburn,
Commonwealth of Massachusetts, as of June 29, 2000.
ANTIGENICS INC.
By: /s/ Garo H. Armen, Ph.D.
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Garo H. Armen, Ph.D.
Chief Executive Officer and
Chairman of the Board of Directors
POWER OF ATTORNEY
We, the undersigned officers and directors of Antigenics Inc., hereby severally
constitute and appoint Garo H. Armen, Ph.D., Edward Brodsky and Michael Lytton
and each of them singly, our true and lawful attorneys-in-fact, with full power
to them in any and all capacities, to sign any and all amendments to this
Registration Statement on Form S-8 (including any post-effective amendments
thereto), 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 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 below by the following persons in the capacities and
as of the dates indicated.
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SIGNATURE TITLE DATE
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/s/ Garo H. Armen, Ph.D. Chief Executive Officer and June 29, 2000
------------------------------------- Chairman of the Board of
Garo H. Armen, Ph.D. Directors (Principal Executive
Officer and Principal Financial
and Accounting Officer)
/s/ Pramod Srivastava, Ph.D. Director June 29, 2000
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Pramod Srivastava, Ph.D.
/s/ Noubar Afeyan, Ph.D. Director June 29, 2000
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Noubar Afeyan, Ph.D.
/s/ Edward Brodsky Director June 29, 2000
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Edward Brodsky
/s/ Gamil De Chadarevian Director June 29, 2000
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Gamil de Chadarevian
Director
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Tom Dechaene
/s/ Donald Panoz Director June 29, 2000
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Donald Panoz
/s/ Martin Taylor Director June 29, 2000
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Martin Taylor
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
4.1 Certificate of Incorporation of Antigenics Inc. Filed as
Exhibit 3.1 to our Registration Statement on Form S-1 (File
No. 333-91747) and incorporated herein by reference.
4.2 By-laws of Antigenics Inc. Filed as Exhibit 3.2 to our
Registration Statement on Form S-1 (File No. 333-91747) and
incorporated herein by reference.
4.3 Form of Warrant to purchase Common Stock, together with a list
of holders. Filed as Exhibit 4.1 to our Registration Statement
on Form S-1 (File No. 333-91747) and incorporated herein by
reference.
4.4 Form of Subscription Agreement, as amended, together with a
list of parties thereto. Filed as Exhibit 4.2 to our
Registration Statement on Form S-1 (File No. 333-91747) and
incorporated herein by reference.
5.1 Opinion of Palmer & Dodge LLP. Filed herewith.
23.1 Consent of KPMG LLP. Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Included in the opinion filed
as Exhibit 5.1.
24.1 Power of Attorney. Included on the signature page hereto.
99.1 1999 Employee Stock Purchase Plan. Filed as Appendix B to our
Proxy Statement on Schedule 14A filed on April 24, 2000 (File
No. 000-29089) and incorporated herein by reference.
