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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
CELL GENESYS, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3061375
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
342 Lakeside Drive
Foster City, California 94404
(Address, including zip code, of principal executive offices)
Merlin Pharmaceutical Corporation
1993 Stock Option Plan
(Full title of the plan)
Kathleen Sereda Glaub
Senior Vice President and Chief Financial Officer
Cell Genesys, Inc.
342 Lakeside Drive
Foster City, California 94404
(415) 358-9600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copy to:
William H. Hinman, Jr., Esq.
Shearman & Sterling
555 California Street
San Francisco, California 94104
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
Average Maximum
Amount Offering Aggregate Amount of
Title of Securities to Be Price Offering Registration
to Be Registered Registered Per Share(1) Price(1) Fee
</TABLE>
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<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Common stock, 66,941 shares $0.03 $2,008.23 $0.61
par value $.001
per share
(including
associated
preferred share
purchase rights)
(1) Computed in accordance with Rule 457(h) solely for the purpose of
computing the amount of the registration fee based on the actual price
at which the options granted under the plan may be exercised.
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in the
Registration Statement:
(a) The Registrant's annual report on Form 10-K for the fiscal
year ended December 31, 1996;
(b) The amendment on Form 10-K/A to the Registrant's annual
report on Form 10-K for the fiscal year ended December 31, 1996, filed
with the Securities and Exchange Commission (the "Commission") on April
29, 1997;
(c) All other reports filed by the Registrant pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), since December 31, 1996; and
(d) The description of the Registrant's Common Stock and
associated preferred share purchase rights, contained in the
Registrant's Registration Statements on Form 8-A filed with the
Commission on March 24, 1992 and August 8, 1995, registering such
shares and associated rights pursuant to Section 12 of the Exchange
Act, including any amendment or report updating such descriptions.
All 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 hereby
have been sold or which deregisters all securities then remaining unsold, also
shall be deemed to be incorporated by reference in this 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware provides that a corporation has the power to indemnify a director,
officer, employee or agent of the corporation and certain other persons serving
at the request of the corporation in related capacities against amounts paid and
expenses incurred in connection with an action or proceeding to which he or she
is or is threatened to be made a party by reason of such position, if such
person has acted in good faith and in a manner he or she reasonably believed to
be in or not opposed to the best interests of the corporation, and, in any
criminal proceeding, if such person had no reasonable cause to believe his or
her conduct was unlawful; provided that, in the case of actions brought by or in
the right of the corporation, no indemnification may be made with respect to any
matter as to which such person has been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
The Registrant's certificate of incorporation provides that no
director will be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) for
authorizing the payment of a dividend or repurchase of stock or (iv) for any
transaction in which the director derived an improper personal benefit.
The Registrant's by-laws provide that the Registrant must
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 Registrant) by reason of the fact that he or she is or was a
director or officer of the Registrant, or that such director or officer is or
was serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture trust or other
enterprise (collectively "Agent"), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement (if such settlement is approved
in advance by the Registrant, which approval may not be unreasonably withheld)
actually and reasonably incurred by him or her in connection with such action,
suit or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, will not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Registrant, and with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
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The Registrant's by-laws provide further that the Registrant
must indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action or suit by or in the right
of the Registrant to procure a judgment in its favor by reason of the fact that
he or she is or was an Agent against expenses (including attorneys' fees)
actually and reasonably incurred by him or her in connection with the defense or
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Registrant, provided that no indemnification may be made in
respect of any claim, issue or matter as to which such person has been adjudged
to be liable to the Registrant unless and only to the extent that the Delaware
Court of Chancery or the court in which such action or suit was brought
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Delaware Court of Chancery or
such other court deems proper.
Pursuant to its by-laws, the Registrant has the power to
purchase and maintain a directors and officers liability policy to insure its
officers and directors against certain liabilities.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
----------- -----------
<S> <C>
5.1 Opinion of Shearman & Sterling as to the legality of
the Registrant's Common Stock being registered hereby.
23.1 Consent of Shearman & Sterling with respect to the
legality of the securities being registered (contained
in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors,
with respect to the consolidated financial statements
of the Registrant.
24.1 Power of Attorney (included on page 9).
</TABLE>
ITEM 9. UNDERTAKINGS.
(a) The 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:
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(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; 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)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act,
that are incorporated by reference 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 Plan.
(b) 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 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 the initial bona fide offering thereof.
(c) 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,
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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.
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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 Foster City, State of California, on the 13th
day of June, 1997.
CELL GENESYS, INC.
By /s/ Kathleen Sereda Glaub
--------------------------
Kathleen Sereda Glaub
Senior Vice President and Chief
Financial Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints Stephen A. Sherwin, M.D.
and Kathleen Sereda Glaub, jointly and severally, his or her attorneys-in-fact,
each with the power of substitution, for such persons in any and all capacities
to sign any amendments to the Registration Statement, and to file the same, with
exhibits thereto and other documents in connection therewith, with the
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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Stephen A. Sherwin Chairman of the Board, President June 13, 1997
- ------------------------------- and Chief Executive Officer
Stephen A. Sherwin, M.D. (Principal Executive Officer)
/s/ Kathleen Sereda Glaub Senior Vice President and Chief June 13, 1997
- ------------------------------- Financial Officer (Principal
Kathleen Sereda Glaub Financial and Accounting
Officer)
/s/ David W. Carter Director June 13, 1997
- -------------------------------
David W. Carter
/s/ James M. Gower Director June 13, 1997
- -------------------------------
James M. Gower
/s/ Raju S. Kucherlapati Director June 13, 1997
- -------------------------------
Raju S. Kucherlapati, Ph.D.
/s/ Joseph E. Maroun Director June 13, 1997
- -------------------------------
Joseph E. Maroun
/s/ John T. Potts, Jr. Director June 13, 1997
- -------------------------------
John T. Potts, Jr., M.D.
/s/ Thomas E. Shenk Director June 13, 1997
- -------------------------------
Thomas E. Shenk, Ph.D.
/s/ Eugene L. Step Director June 13, 1997
- -------------------------------
Eugene L. Step
Director
- -------------------------------
Inder M. Verma, Ph.D.
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
5.1 Opinion of Shearman & Sterling as to the legality of
the common stock, par value $.001, of Cell Genesys,
Inc. being registered hereby.
23.1 Consent of Shearman & Sterling with respect to the
legality of the securities being registered (contained in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors,
with respect to the consolidated financial statements of
Cell Genesys, Inc.
24.1 Power of Attorney (included on page 9).
</TABLE>
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EXHIBIT 5.1
Shearman & Sterling
555 California Street
San Francisco, California 94104-1522
June 13, 1997
Board of Directors
Cell Genesys, Inc.
342 Lakeside Drive
Foster City, California 94404
Merlin Pharmaceutical Corporation 1993 Stock Option Plan
Registration Statement on Form S-8
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel for Cell Genesys, Inc., a corporation
organized under the laws of the State of Delaware (the "Company"), in connection
with the preparation of a registration statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933, as amended, with respect to the
registration of 66,941 shares (the "Shares") of common stock, par value $0.001
per share, of the Company available for issuance pursuant to the 1993 Stock
Option Plan (the "Plan") of Merlin Pharmaceutical Corporation assumed by the
Company in connection with the merger of Somatix Therapy Corporation ("Somatix")
with and into S Merger Corp., a corporation organized under the laws of the
State of Delaware ("Merger Sub") and a direct wholly owned subsidiary of the
Company, pursuant to the agreement and plan of merger and reorganization, dated
as of January 12, 1997, as amended and restated as of March 27, 1997, among the
Company, Merger Sub and Somatix.
In acting as such counsel, we relied upon such corporate records of
the Company and such other documents and certificates of fact as we have deemed
necessary or appropriate as a basis for the opinion hereinafter expressed. In
such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents presented to us as originals, the conformity to
the originals of all documents presented to us as copies, and the authenticity
of the originals of such latter documents. In rendering such opinion, we have
relied as to factual matters upon certificates of officers of the Company and
certificates of public officers.
<PAGE>
Based upon the foregoing, we are of the opinion that the Shares have
been duly authorized and, when sold and delivered against payment therefor in
the manner described in the Registration Statement and the Plan, the Shares will
be validly issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
Very truly yours,
SHEARMAN & STERLING
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1993 Stock Option Plan of Merlin Pharmaceutical
Corporation assumed by Cell Genesys, Inc. for the registration of 66,941 shares
of Cell Genesys, Inc. common stock, of our report dated January 27, 1997, with
respect to the consolidated financial statements of Cell Genesys, Inc. included
in its Annual Report as amended (Form 10-K/A) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
June 12, 1997
