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As filed with the Securities and Exchange Commission
on July 19, 1996
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
IMMULOGIC PHARMACEUTICAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 33-3397957
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
610 LINCOLN STREET, WALTHAM, MASSACHUSETTS 02154
(Address of Principal Executive Offices) (Zip Code)
1996 STOCK OPTION PLAN
(Full title of the plan)
RICHARD N. SMALL
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
IMMULOGIC PHARMACEUTICAL CORPORATION
610 LINCOLN STREET
WALTHAM, MASSACHUSETTS 02154
(Name and address of agent for service)
(617) 466-6000
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ---------- ---------- --------- --------- ------------
Common Stock, 500,000 $7.00(1) $3,500,000(1) $1,207.00
$.01 par shares
value
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(1) Estimated solely for the purpose of calculating the registration fee, and
based upon the average of the high and low prices of the Common Stock on
the Nasdaq National Market on July 17, 1996 in accordance with Rules
457(c) and 457(h) of the Securities Act of 1933.
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Page 1 of 11 pages
Exhibit Index begins on page 8
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1996 Stock Option Plan of ImmuLogic Pharmaceutical
Corporation, a Delaware corporation (the "Registrant"), pursuant to Rule
428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Prospectus by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the Common Stock, par value $.01 per share
("Common Stock"), contained in a registration statement filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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 shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
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 or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
is or was serving at its request in such capacity in another corporation or
business association, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he 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 his conduct was unlawful.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation 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
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 Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article EIGHTH of the Registrant's Restated Certificate of Incorporation,
as amended, requires the Registrant to indemnify each person who is or was or
has agreed to be a director or officer of the Registrant against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement to
the maximum extent permitted from time to time under the Delaware General
Corporation Law, as amended. In addition, Article NINTH provides that no
director of the Registrant shall be liable for monetary damages for any breach
of fiduciary duty, except to the extent that the Delaware General Corporation
Law prohibits the elimination or limitation of liability of directors for breach
of fiduciary duty.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
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Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
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1. The 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; 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 (i) and (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.
(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 therein, 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 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
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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 therein, and the offering of such securities at that time
shall be deemed to be in 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.
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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 City of Waltham, Commonwealth of Massachusetts on the 18th
day of July, 1996.
IMMULOGIC PHARMACEUTICAL CORPORATION
By: /s/ Robert J. Gerety
-----------------------------------
Robert J. Gerety, M.D. Ph.D.
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of ImmuLogic Pharmaceutical
Corporation hereby severally constitute Robert J. Gerety, Richard N. Small and
Stacey L. Channing, and each of them singly, our true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names in
the capacities indicated below, the Registration Statement on Form S-8 filed
herewith and any and all subsequent amendments to said Registration Statement,
and generally to do all such things in our names and behalf in our capacities as
officers and directors to enable ImmuLogic Pharmaceutical Corporation to comply
with all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
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Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below by the following persons in the capacities and
on the date indicated.
Signature Title Date
- --------- ----- ----
/s/ Robert J. Gerety President, Chief )
- ------------------------------ Executive Officer )
Robert J. Gerety, M.D., Ph.D. and Director )
(Principal Executive )
Officer) )
)
/s/ Richard N. Small Vice President, )
- ------------------------------ Chief Financial Officer )
Richard N. Small (Principal Financial )
and Accounting Officer )
)
)
/s/ Malcolm L. Gefter Director )
- ------------------------------ )
Malcolm L. Gefter, Ph.D. )
)
)
)
/s/ Alan J. Dalby Director )
- ------------------------------ )
Alan J. Dalby ) July 18, 1996
)
)
)
/s/ M Howard Jacobson Director )
- ------------------------------ )
M Howard Jacobson )
)
)
)
/s/ Kenneth L. Melmon Director )
- ------------------------------ )
Kenneth L. Melmon, M.D. )
)
)
)
/s/ Larry Soll Director )
- ------------------------------ )
Larry Soll, Ph.D. )
)
)
)
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EXHIBIT INDEX
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Exhibit
Number Description
- ------- -----------
4.1 * By-Laws of the Registrant
4.2 * Specimen Certificate of Common Stock of
the Registrant
4.3 ** Rights Agreement, dated as of July 11, 1995,
between the Registrant and the First National
Bank of Boston, as Rights Agent.
5 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr (included in Exhibit 5)
23.2 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in the signature pages
of this Registration Statement)
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* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-39592).
** Incorporated herein by reference from the Registrant's Current Report
on Form 8-K dated July 11, 1995.
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July 18, 1996
ImmuLogic Pharmaceutical Corporation
610 Lincoln Street
Waltham, MA 02154
Re: Registration Statement on Form S-8
1996 Stock Option Plan
----------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to 500,000 shares of Common Stock, $.01 par value per share
(the "Shares"), of ImmuLogic Pharmaceutical Corporation, a Delaware corporation
(the "Company"), issuable under the Company's 1996 Stock Option Plan (the
"Plan").
We have examined the Restated Certificate of Incorporation, as amended and
the By-Laws of the Company, and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors and
stockholders of the Company, the Registration Statement and such other documents
relating to the Company as we have deemed material for the purposes of this
opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified or photostatic copies, and the authenticity of the originals
of such latter documents.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan at a price per share at least equal to the par value per share
of the Common Stock, will be legally issued, fully paid and nonassessable.
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We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this registration statement of
Immulogic Pharmaceutical Corporation (the "Company") on Form S-8 to register
500,000 shares of the Company's common stock for the 1996 Stock Option Plan of
our report, dated February 9, 1996, except for the information contained in Note
F, for which the date is March 22, 1996, on our audit of the consolidated
financial statements of the Company as of December 31, 1995 and 1994, and for
each of the three years in the period ended December 31, 1995, which report is
included in the Company's 1995 Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
----------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
July 18, 1996
