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Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GENOME THERAPEUTICS CORP.
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(Exact name of issuer as specified in its charter)
MASSACHUSETTS 04-2297484
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(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
100 Beaver Street
Waltham, Massachusetts 02453
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(Address of principal executive offices including zip code)
RESTRICTED STOCK AWARD AGREEMENTS
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(Full title of the Plan)
Philip V. Holberton
Genome Therapeutics Corp.
100 Beaver Street
Waltham, Massachusetts 02453
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(Name and address of agent for service)
(781) 398-2300
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(Telephone number, including area code, of agent for service)
Please send copies of all communications to:
David C. Chapin, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110-2624
Telephone: (617) 951-7371
- ---------------- ---------------- --------------- --------------- --------------
Title of Proposed Proposed
Securities Maximum Maximum
of Amount Offering Aggregate Amount
To Be To Be Price Per Offering Registration
Registered Registered Share (1) Price (1) Fee
- ---------------- ---------------- --------------- --------------- --------------
Common Stock, 125,716 $5.844 $734,684 $194
$.10 par value.
- -------------------------
(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average high and low prices of the Common Stock as reported by the
National Association of Securities Dealers Automated Quotation System on
December 13, 1999.
Exhibit Index can be found on page 8.
This is page 1 of 15 pages.
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Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the fiscal year ended
August 31, 1999, all the reports filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13(a) and (c), 14 and 15(d) of the
Securities Exchange Act of 1934 since the end of the fiscal year covered by the
Company's Annual Report referred to above, and the description of the Company's
Common Stock contained in its Form 10/A, File No. 0-10824 are incorporated by
reference and made a part of this registration statement.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a) and (c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities 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 Required.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company is organized under the laws of The Commonwealth of
Massachusetts. The Massachusetts Business Corporation Law provides that
indemnification of directors, officers, employees, and other agents of another
organization, or who serve at its request is any capacity with respect to any
employee benefit plan, may be provided by the corporation to whatever extent
specified in its charter documents or votes adopted by its shareholders, except
that no indemnification may be provided for any person with respect to any
matter as to which the person shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in the
best interest of the corporation. Under Massachusetts law, a corporation can
purchase and maintain insurance on behalf of any person against any liability
incurred as a director, officer, employee, agent, or person serving at the
request of the corporation as a director, officer, employee, or other agent of
another organization or with respect to any employee benefit plan, in his
capacity as such, whether or not the corporation would have power to itself
indemnify him against such liability.
The Company's Restated Articles of Organization, as amended to date,
provide that its directors shall not be liable to the Company or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that the exculpation from liabilities is not permitted
under the Massachusetts Business Corporation Law as in effect at the time such
liability is determined. The By-laws provide that the Company shall indemnify
its directors and officers to the full extent permitted by the laws of The
Commonwealth of Massachusetts. In addition, the Company holds a Directors and
Officer Liability and Corporate Indemnification Policy.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS.
Exhibit 4(a). Form of Restricted Stock Award Agreements.
Exhibit 4(b). The Company's Restated Articles of Organization
(filed as an exhibit to the Company's Registration
Statement on Form S-1 (No. 2-75230) and incorporated
herein by reference).
Exhibit 4(c). Amendment dated January 5, 1982 to Restated Articles
of Organization (filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended
February 27, 1982 and incorporated herein by
reference).
Exhibit 4(d). Amendment dated January 24, 1983 to Restated Articles
of Organization (filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended
February 26, 1983 and incorporated herein by
reference).
Exhibit 4(e). Amendment dated January 17, 1984 to Restated Articles
of Organization (filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended
February 25, 1984 and incorporated herein by
reference).
Exhibit 4(f). Amendment dated December 9, 1987 to Restated Articles
of Organization (filed as an exhibit to the Company's
Quarterly Report on Form 10-Q for the quarter ended
November 28, 1987 and incorporated herein by
reference).
Exhibit 4(g). Amendment dated January 24, 1994 to Restated Articles
of Organization (filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended August
31, 1994 and incorporated herein by reference).
Exhibit 4(h). Amendment dated August 31, 1994 to Restated Articles
of Organization (filed as an exhibit to the Company's
Annual Report on Form 10-K for the year ended August
31, 1994 and incorporated herein by reference).
Exhibit 4(i). The Company's By-laws (filed as an exhibit to the
Company's Registration Statement on Form S-1 (No.
2-75230) and incorporated herein by reference).
Exhibit 4(j). Amendment dated October 20, 1987 to the By-laws
(filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended August 31,
1987 and incorporated herein by reference).
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Exhibit 4(k). Amendment dated October 16, 1989 to the By-laws
(filed as an exhibit to the Company's Annual Report
on Form 10-K for the fiscal year ended August 31,
1989 and incorporated herein by reference).
Exhibit 5. Opinion of Ropes & Gray.
Exhibit 23(a). Consent of Ropes & Gray (contained in Exhibit 5).
Exhibit 23(b). Consent of Arthur Andersen LLP.
Exhibit 24. Power of Attorney (included as part of the signature
pages to this Registration Statement).
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 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;
(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)(1)(i) and (a)(1)(ii) will 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 Section 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.
(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 any
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by
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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 the 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 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
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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 Waltham, Commonwealth of Massachusetts, on this 17th
day of December, 1999.
Genome Therapeutics Corp.
By: /s/ Philip V Holberton
--------------------------------
Title: Chief Financial Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Robert J. Hennessey and Philip V. Holberton and
each of them, with full power to act without the other, his true and lawful
attorneys-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
or all amendments to this registration statement, including post-effective
amendments, 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 and about the premises, 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 substitutes 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.
NAME TITLE DATE
/s/ Robert J. Hennessey Chairman of the Board; December 17, 1999
- -------------------------- President and Chief
Robert J. Hennessey Executive Officer (Principal
Executive Officer)
/s/ Marc B. Garnick Director December 17, 1999
- --------------------------
Marc B. Garnick
/s/ Philip Leder Director December 17, 1999
- --------------------------
Philip Leder
/s/ Lawrence Levy Director December 17, 1999
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Lawrence Levy
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/s/ Steven M. Rauscher Director December 17, 1999
- --------------------------
Steven M. Rauscher
/s/ Norbert G. Riedel Director December 17, 1999
- --------------------------
Norbert G. Riedel
/s/ Philip V. Holberton Chief Financial Officer December 17, 1999
- -------------------------- (Principal Financial Officer)
Philip V. Holberton
/s/ Manny J. Bougoulas Controller (Principal December 17, 1999
- -------------------------- Accounting Officer)
Manny J. Bougoulas
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EXHIBIT INDEX
NUMBER TITLE OF EXHIBIT PAGE
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4(a). Form of Restricted Stock Award Agreements 9
5. Opinion of Ropes & Gray 15
23(a). Consent of Ropes & Gray Contained in Exhibit 5
23(b). Consent of Arthur Andersen LLP 16
24. Power of Attorney Included as Part of Signature
Pages to this Registration
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EXHIBIT 4(a)
GENOME THERAPEUTICS CORP.
RESTRICTED STOCK AWARD AGREEMENT
Pursuant to this Restricted Stock Award Agreement between the
undersigned and Genome Therapeutics Corp. (the "Company"), the undersigned is
advised that the Board of Directors of the Company (the "Board") has voted to
award the undersigned [INSERT NUMBER] shares of common stock of the Company,
$.10 par value ("Stock"), subject to the restrictions and conditions set forth
below. The date of this Award, set forth above, is hereinafter referred to as
the "date of grant". Please note that in order for this Agreement to be valid,
the undersigned must execute two copies and forward one copy to Joseph A. Pane,
Vice President, Human Resources, at Genome Therapeutics Corp., 100 Beaver
Street, Waltham, Massachusetts 02154, not later than [30 DAYS AFTER DATE OF THE
AWARD].
In consideration of the Company's transferring to the undersigned the
shares of Stock provided for herein, the undersigned hereby agrees with the
Company as follows:
1. The shares of Stock issued by the undersigned hereunder
pursuant to this Restricted Stock Award Agreement shall not be
sold, transferred, pledged, assigned or otherwise encumbered
or disposed of except as provided below.
2. In the event the undersigned ceases to be employed by the
Company for any reason other than death or disability (as
hereinafter defined), the Stock issued hereunder, less any
shares that have previously vested, shall be immediately
forfeited to the Company. In the event the undersigned
involuntarily ceases to be employed by the Company for any
reason other than for cause, the Company, at its discretion,
may distribute all of the unvested Stock issued hereunder. The
undersigned shall deliver to the Company one or more stock
powers, endorsed in blank, with respect to shares of Stock
under this award that have not yet vested. For purposes of
this Agreement, "disability" shall mean the inability of the
undersigned to perform the services normally rendered due to
any physical or mental impairment that can be expected to be
of either permanent or indefinite duration, as determined by
the Board or one of its committees on the basis of appropriate
medical evidence and that results in the termination of
employment of the undersigned; provided, that if the
undersigned has entered into an employment agreement with the
Company, the term of which has not expired at the time a
determination concerning disability hereunder is to be made,
disability for purposes of this Agreement shall have
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the meaning, if any, attributed to "permanent disability" in
such employment agreement.
3. The shares of Stock issued hereunder shall vest in accordance
with the provisions of this Paragraph 3, as follows:
as to 50% of the shares on August 31, 2000, and as to the remaining 50%
of the shares on August 31, 2001.
provided in each case that the undersigned is then, and since the date of grant
has continuously been, employed by the Company. In the event of a Change of
Control of the Company, all shares of Stock issued hereunder that have not
previously been forfeited shall immediately vest, provided that the undersigned
remains employed by the Company at least 120 days following such Change of
Control. For purposes of the Agreement, "Change of Control" shall mean (i) the
acquisition of 35% or more of the outstanding common stock of the Company by a
person, group, or entity; (ii) a merger or other business combination in which
the Company is not the surviving corporation; or (iii) diminution of employment
status in either responsibility or compensation as a direct result of a Change
in Control.
4. Unvested shares shall be represented by certificates, which
shall be held by the Company, containing the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
FORFEITURE) OF A RESTRICTED STOCK AWARD AGREEMENT ENTERED INTO BETWEEN
THE REGISTERED OWNER AND GENOME THERAPEUTICS CORP. COPIES OF SUCH
AGREEMENT ARE ON FILE IN THE OFFICES OF GENOME THERAPEUTICS CORP.
As soon as practicable following the vesting of any such shares the Company
shall cause a new certificate or certificates covering such shares, without the
aforesaid legend, to be issued and delivered to the undersigned, subject to the
payment by the undersigned by cash or other means acceptable to the Company of
any withholding taxes due in connection with such vesting.
5. The undersigned shall be entitled to any and all dividends or
other distributions paid with respect to all shares of Stock
issued hereunder which have not been forfeited or otherwise
disposed of and shall be entitled to vote any such shares;
provided, however, that any property (other than cash)
distributed with respect to a share of Stock (the "associated
share") issued hereunder, including without limitation a
distribution of Stock by reason of a stock dividend, stock
split or
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otherwise, or a distribution of other securities with respect
to an associated share, shall be subject to the restrictions
of this Restricted Stock Award Agreement in the same manner
and for so long as the associated share remains subject to
such restrictions, and shall be promptly forfeited to the
Company if and when the associated share is so forfeited.
6. The undersigned understands that once a certificate has been
delivered to the undersigned in respect of shares of Stock
issued hereunder which have vested, the undersigned will be
free to sell the shares of Stock evidenced by such
certificate, subject to applicable requirements of federal and
state securities laws.
7. The undersigned expressly acknowledges that the award or
vesting of the shares of Stock issued hereunder will give rise
to "wages" subject to withholding. The undersigned expressly
acknowledges and agrees that his [HER] rights hereunder are
subject to his [HER] paying to the Company in cash (or by such
other means as may be acceptable to the Company in its
discretion, including, if the Board or one of its committees
so determines, by the delivery of previously issued Stock or
shares of Stock issued hereunder) all taxes required to be
withheld in connection with such award or vesting.
IN WITNESS WHEREOF, each of the Company and the undersigned hereby
executes this agreement as of the date first written above.
GENOME THERAPEUTICS CORP.
By: _______________________________
Title: Name:
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GENOME THERAPEUTICS CORP.
RESTRICTED STOCK AWARD AGREEMENT
Pursuant to this Restricted Stock Award Agreement between the
undersigned and Genome Therapeutics Corp. (the "Company"), the undersigned is
advised that the Board of Directors of the Company (the "Board") has voted to
award the undersigned [INSERT NUMBER] shares of common stock of the Company,
$.10 par value ("Stock"), subject to the restrictions and conditions set forth
below. The date of this Award, set forth above, is hereinafter referred to as
the "date of grant". Please note that in order for this Agreement to be valid,
the undersigned must execute two copies and forward one copy to Joseph A. Pane,
Vice President, Human Resources, at Genome Therapeutics Corp., 100 Beaver
Street, Waltham, Massachusetts 02154, not later than [INSERT DATE; 30 DAYS AFTER
DATE OF THE AWARD].
In consideration of the Company's transferring to the undersigned the
shares of Stock provided for herein, the undersigned hereby agrees with the
Company as follows:
1. The shares of Stock issued by the undersigned hereunder pursuant to
this Restricted Stock Award Agreement shall not be sold, transferred,
pledged, assigned or otherwise encumbered or disposed of except as
provided below.
2. In the event the undersigned ceases to be employed by the Company for
any reason other than death or disability (as hereinafter defined), the
shares of Stock issued hereunder, less any shares that have previously
vested, shall be immediately forfeited to the Company. The undersigned
shall deliver to the Company one or more stock powers, endorsed in
blank, with respect to shares of Stock under this award that have not
yet vested. For purposes of this Agreement, "disability" shall mean the
inability of the undersigned to perform the services normally rendered
due to any physical or mental impairment that can be expected to be of
either permanent or indefinite duration, as determined by the Board or
one of its committees on the basis of appropriate medical evidence and
that results in the termination of employment of the undersigned;
provided, that if the undersigned has entered into an employment
agreement with the Company, the term of which has not expired at the
time a determination concerning disability hereunder is to be made,
disability for purposes of this Agreement shall have the meaning, if
any, attributed to "permanent disability" in such employment agreement.
3. The shares of Stock issued hereunder shall vest on August 31, 2001,
provided that the undersigned is then, and since the date of grant has
continuously been, employed by the Company.
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4. Unvested shares shall be represented by certificates, which shall be
held by the Company, containing the following legend:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK
REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING
FORFEITURE) OF A RESTRICTED STOCK AWARD AGREEMENT ENTERED INTO BETWEEN
THE REGISTERED OWNER AND GENOME THERAPEUTICS CORP. COPIES OF SUCH
AGREEMENT ARE ON FILE IN THE OFFICES OF GENOME THERAPEUTICS CORP.
As soon as practicable following the vesting of any such shares the Company
shall cause a new certificate or certificates covering such shares, without the
aforesaid legend, to be issued and delivered to the undersigned, subject to the
payment by the undersigned by cash or other means acceptable to the Company of
any withholding taxes due in connection with such vesting.
5. The undersigned shall be entitled to any and all dividends or other
distributions paid with respect to all shares of Stock issued hereunder
which have not been forfeited or otherwise disposed of and shall be
entitled to vote any such shares; provided, however, that any property
(other than cash) distributed with respect to a share of Stock (the
"associated share") issued hereunder, including without limitation a
distribution of Stock by reason of a stock dividend, stock split or
otherwise, or a distribution of other securities with respect to an
associated share, shall be subject to the restrictions of this
Restricted Stock Award Agreement in the same manner and for so long as
the associated share remains subject to such restrictions, and shall be
promptly forfeited to the Company if and when the associated share is
so forfeited.
6. The undersigned understands that once a certificate has been delivered
to the undersigned in respect of shares of Stock issued hereunder which
have vested, the undersigned will be free to sell the shares of Stock
evidenced by such certificate, subject to applicable requirements of
federal and state securities laws.
7. The undersigned expressly acknowledges that the award or vesting of the
shares of Stock issued hereunder will give rise to "wages" subject to
withholding. The undersigned expressly acknowledges and agrees that his
[HER] rights hereunder are subject to his [HER] paying to the Company
in cash (or by such other means as may be acceptable to the Company in
its discretion, including, if the Board or one of its committees so
determines, by the delivery of previously issued
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Stock or shares of Stock issued hereunder) all taxes required to be
withheld in connection with such award or vesting.
IN WITNESS WHEREOF, each of the Company and the undersigned hereby
executes this agreement as of the date first written above.
GENOME THERAPEUTICS CORP.
By: _______________________________
Title: Name:
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EXHIBIT 5
December 17, 1999
Genome Therapeutics Corp.
100 Beaver Street
Waltham, Massachusetts 02453
Ladies and Gentlemen:
We have acted as counsel for Genome Therapeutics Corp., a Massachusetts
corporation (the "Company") in connection with the preparation of a registration
statement on Form S-8 and all exhibits thereto (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, for the registration of 125,716 shares of Common Stock, $.10
par value (the "Shares").
The 125,716 shares being registered are issuable upon the vesting of
stock granted pursuant to certain restricted stock award agreements (the
"Agreements") between the Company and the respective holders.
For purposes of this opinion, we have examined a copy of the
Registration Statement; copies of the Agreements; the Restated Articles of
Organization of the Company, as amended to date; the By-laws of the Company, as
amended to date; the votes of the Board of Directors and the stockholders of the
Company approving and adopting the the Agreements; and such other documents and
records as we deem necessary for purposes of this opinion.
We have assumed that the Shares will be issued only as provided in the
Agreements and that the price at which such Shares are issued will not be less
than the par value per share of the Company's Common Stock. We have also assumed
that the issuance of any such shares will not result in the issuance by the
Company of more than its authorized shares of Common Stock.
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Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a duly organized and validly existing corporation
under the laws of The Commonwealth of Massachusetts.
2. The Shares, when issued upon their vesting date, pursuant to the
terms and conditions of the Agreements, will be validly issued and will be fully
paid and nonassessable.
In connection with any issue and sale of the Shares, steps should be
taken to effect compliance with all applicable laws, rules and regulations of
governmental authorities regulating sales and offerings of securities.
We understand that this opinion is to be used in connection with the
Registration Statement. We consent to the filing of this opinion as an exhibit
to the Registration Statement and to the use of our name therein.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
<PAGE> 1
EXHIBIT 23(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports (and to all references to our Firm) included in or made a part of this
registration statement.
/s/ Arthur Andersen LLP
----------------------------------
ARTHUR ANDERSEN LLP
December 15, 1999
