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As filed with the Securities and Exchange Commission on August 30, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------
TELIK, INC.
(Exact name of registrant as specified in its charter)
Delaware 93-0987903
(State of Incorporation) (I.R.S. Employer Identification No.)
----------------------------
750 Gateway Boulevard
South San Francisco, CA 94080
(650) 244-9303
(Address of principal executive offices)
-----------------------------
2000 Equity Incentive Plan
2000 Employee Stock Purchase Plan
2000 Non-Employee Directors' Stock Option Plan
1996 Stock Option Plan
1988 Stock Option Plan
Certain Non-Plan Stock Option Agreements
(Full title of the plans)
Michael M. Wick, MD, PhD
Chairman and Chief Executive Officer
Telik, Inc.
750 Gateway Boulevard
South San Francisco, CA 94080
(650) 244-9303
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
Copies to:
Deborah A. Marshall, Esq.
Cooley Godward LLP
One Maritime Plaza, 20/th/ Floor
San Francisco, CA 94111-3580
(415) 693-2000
----------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Share Aggregate Offering Price Amount of Registration Fee
Registered Registered (1) (2) (2)(3)
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<S> <C> <C> <C> <C>
Common Stock (par value
$0.01) 4,877,225 $7.9688 $23,819,944.60 $6,288.47
====================================================================================================================================
</TABLE>
(1) This Registration Statement shall cover any additional shares of Common
Stock which become issuable under the Telik, Inc. ("Registrant" or "Company")
2000 Equity Incentive Plan, 2000 Employee Stock Purchase Plan, 2000 Non-Employee
Directors' Stock Option Plan, 1996 Stock Option Plan, 1988 Stock Option Plan and
certain non-plan stock option agreements (pursuant to Rule 457(h) under the
Securities Act of 1933, as amended (the "Act")) 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.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price, for shares subject to
options previously granted under the Company's 2000 Non-Employee Directors'
Stock Option Plan, 1996 Stock Option Plan, 1988 Stock Option Plan and certain
non-plan stock option agreements (pursuant to Rule 457(h) under the Act) and (b)
the average of the high and low prices of the Company's Common Stock as reported
on the Nasdaq National Market on August 23, 2000 for shares available for grant
pursuant to the 2000 Equity Incentive Plan, 2000 Employee Stock Purchase Plan
and 2000 Non-Employer Directors' Stock Option Plan (pursuant to Rule 457(c)
under the Act).
(3) See the following table for calculation of proposed maximum aggregate
offering price.
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The chart below details the calculations of the proposed maximum aggregate
offering price:
<TABLE>
<CAPTION>
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Offering Price Per Aggregate
Securities Number of Shares Per Share Offering Price
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<S> <C> <C> <C>
Shares of Common Stock, par value 2,000,000 $7.9688 1(b) $ 15,937,600
$0.01 per share, reserved for
future grant under the 2000 Equity
Incentive Plan
===============================================================================================================
Shares of Common Stock, par value 250,000 $7.9688 1(b) $ 1,992,200
$0.01 per share, reserved for
future issuance under the 2000
Employee Stock Purchase Plan
===============================================================================================================
Shares of Common Stock, par value 100,000 $ 7.00 1(a) $ 700,000
$0.01 per share, issuable pursuant
to outstanding options under the
2000 Non-Employee Directors' Stock
Option Plan
===============================================================================================================
Shares of Common Stock, par value 200,000 $7.9688 1(b) $ 1,593,760
$0.01 per share, reserved for
future grant under the 2000
Non-Employee Directors' Stock
Option Plan
===============================================================================================================
Shares of Common Stock, par value 1,907,941 $ 1.60 1(a) $ 3,052,705.60
$0.01 per share, issuable pursuant
to outstanding options under the
1996 Stock Option Plan
===============================================================================================================
Shares of Common Stock, par value 414,650 $ 1.30 1(a) $ 539,045
$0.01 per share, issuable pursuant
to outstanding options under the
1988 Stock Option Plan
===============================================================================================================
Shares of Common Stock, par value 4,634 $ 1.00 1(a) $ 4,634
$0.01 per share, issuable pursuant
to outstanding options under
certain non-plan stock option
agreements
===============================================================================================================
Total $23,819,944.60
===============================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price per share and aggregate offering price are
based upon (a) the weighted average exercise price, for shares subject to
options previously granted under the Company's 2000 Non-Employee Directors'
Stock Option Plan, 1996 Stock Option Plan, 1988 Stock Option Plan and certain
non-plan stock option agreements (pursuant to Rule 457(h) under the Act) and (b)
the average of the high and low prices of the Company's Common Stock as reported
on the Nasdaq National Market on August 23, 2000 for shares available for grant
pursuant to the 2000 Equity Incentive Plan, 2000 Employee Stock Purchase Plan
and 2000 Non-Employer Directors' Stock Option Plan (pursuant to Rule 457(c)
under the Act).
2.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Telik, Inc. (the "Company") with the
Securities and Exchange Commission are incorporated by reference into this
Registration Statement:
(a) The Company's prospectus contained within Amendment No. 4 to the
Company's registration statement on Form S-1 (registration number 333-33868)
filed on August 11, 2000 under the Securities Act of 1933, as amended (the
"Act"), which contains audited financial statements for the Company's latest
fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Sections 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 prospectus referred to in (a) above.
(c) The description of the Company's Common Stock that is contained in the
Company's registration statement on Form 8-A filed on August 7, 2000 under 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 Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment that indicates that all securities offered have
been sold or that 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.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the Common Stock offered hereby will be
passed upon for the Company by its counsel, Cooley Godward LLP. As of the date
of this Registration Statement, certain partners and associates of Cooley
Godward LLP own an aggregate of 27,777 shares of the Company's Common Stock
through investment partnerships. Deborah A. Marshall, a partner at Cooley
Godward LLP, is Secretary of the Company.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company has entered into indemnity agreements with each of its
directors and certain officers. The form of indemnity agreement provides that
the Company will indemnify against any and all expenses of the director or
executive officer who incurred expenses because of his or her status as a
director or executive officer, to the fullest extent permitted by the Company's
bylaws.
The Company's certificate of incorporation (as amended and restated) and
bylaws contain provisions relating to the limitation of liability and
indemnification of directors and officers. The certificate of incorporation
provides that the liability of the directors for monetary damages shall be
eliminated to the fullest extent under applicable law. In addition, as permitted
by Section 145 of the Delaware General Corporation Law, the Company's bylaws
provide that the Company will indemnify its directors and executive officers and
may indemnify other officers, employees and other agents of the Company to the
fullest extent not prohibited by Delaware law. These provisions do not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws. The Company has purchased a
directors' and officers' liability insurance policy providing coverage up to
specified amounts for losses incurred by the Company, its directors or officers
in connection with specified claims against them, including specified claims
under state and federal securities laws.
3.
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EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
Exhibit
Number
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 2000 Equity Incentive Plan and forms of grant thereunder
99.2 2000 Employee Stock Purchase Plan and form of offering thereunder
99.3 2000 Non-Employee Directors' Stock Option Plan and form of grant
thereunder
99.4 1996 Stock Option Plan and forms of grant thereunder
99.5 1988 Stock Option Plan and forms of grant thereunder
99.6 Form of Non-Plan Stock Option Agreement
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) ((S) 230.424(b) of this
chapter) 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;
4.
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(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.
(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.
5.
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SIGNATURES
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 South San Francisco, State of California, on August
30, 2000.
Telik, Inc.
By: /s/ Michael M. Wick
-------------------------------
Michael M. Wick, MD, PhD
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Know All Persons By These Presents, that each person whose signature
appears below constitutes and appoints Michael M. Wick and Cynthia M. Butitta,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full 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 of 1933, 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>
/s/ Michael M. Wick Chairman and Chief Executive Officer August 30, 2000
----------------------------------------------- (Principal Executive Officer)
Michael M. Wick, MD, PhD
/s/ Cynthia M. Butitta Chief Financial Officer August 30, 2000
----------------------------------------------- (Principal Financial and Accounting
Cynthia M. Butitta Officer)
/s/ Jean Deleage Director August 30, 2000
-----------------------------------------------
Jean Deleage, PhD
/s/ David R. Bethune Director August 30, 2000
-----------------------------------------------
David R. Bethune
</TABLE>
6.
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<TABLE>
<S> <C> <C>
/s/ David W. Martin, Jr. Director August 30, 2000
-----------------------------------------------
David W. Martin, Jr., MD
/s/ Stefan Ryser Director August 30, 2000
-----------------------------------------------
Stefan Ryser, PhD
/s/ Jerrold L. Glick Director August 30, 2000
-----------------------------------------------
Jerrold L. Glick
</TABLE>
7.
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EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequential Page
Number Numbers
<S> <C>
5.1 Opinion of Cooley Godward LLP
23.1 Consent of Ernst & Young LLP, independent auditors
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this Registration Statement
24.1 Power of Attorney is contained on the signature pages
99.1 2000 Equity Incentive Plan and forms of grant thereunder
99.2 2000 Employee Stock Purchase Plan and form of offering thereunder
99.3 2000 Non-Employee Directors' Stock Option Plan and form of grant thereunder
99.4 1996 Stock Option Plan and forms of grant thereunder
99.5 1988 Stock Option Plan and forms of grant thereunder
99.6 Form of Non-Plan Stock Option Agreement
</TABLE>
8.
