<PAGE> 1
As filed with the Securities and Exchange Commission on May 12, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
the Securities Act of 1933
ANERGEN, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 77-0183594
---------- ----------
(State of incorporation) (I.R.S. Employer Identification No.)
301 Penobscot Drive
Redwood City, California 94063
(Address, including zip code, of Registrant's of principal executive offices)
1996 STOCK PLAN
1991 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
BARRY M. SHERMAN, M.D.
Chief Executive Officer
ANERGEN, INC.
301 Penobscot Drive
Redwood City, California 94063
(650) 361-8901
(Name, address, and telephone number, including area code, of agent for service)
Copy to:
Trevor J. Chaplick, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
================================================================================
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered Offering Price Aggregate Offering Registration
Per Share Price Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 500,000 Shares $1.1688(1) $584,400.00(1) $173.00
no par value issuable
pursuant to the 1991
Employee Stock Purchase
Plan
- -----------------------------------------------------------------------------------------------------------------
Common Stock, 1,000,000 Shares $1.375(2) $1,375,000.00(2) $406.00
no par value issuable
pursuant to the 1996
Stock Plan
=================================================================================================================
</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of 85% of $1.1688 per share,
which is the average of the high and low prices reported on the NASDAQ
Stock Market Inc.'s National Market on May 6, 1998.
(2) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the filing fee on the basis of $1.375 per share, which is
the average of the high and low prices reported on the NASDAQ Stock
Market Inc.'s National Market on May 6, 1998.
-2-
<PAGE> 3
ANERGEN, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed by Anergen,
Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997 and filed with the
Commission on March 31, 1998.
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended June 30, 1997 and September 30, 1997.
(c) The description of the Company's Common Stock set forth
in the Company's Registration Statement on Form S-1
number 33-42107, as amended on October 8, 1991,
incorporated by reference in the Company's Registration
Statement on Form 8-A filed with the Commission on
August 7, 1991, pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(d) The Company's previously filed registration statements
on Form S-8 (Nos. 33-33771, 33-95660, 33-44941 and
33-70586) under which 3,289,244 shares of Common Stock
were registered under the 1988 Stock Option Plan, the
1992 Consultant Stock Plan, the 1991 Employee Stock
Purchase Plan and the 1995 Director Option Plan.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, on or after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be part hereof from the date of
filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
<PAGE> 4
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 317 of the California Corporations Code authorizes a court to
award, or a corporation's Board of Directors to grant, indemnity to directors
and officers in terms sufficiently broad to permit such indemnification under
certain circumstances for liabilities (including reimbursement for expenses
incurred) arising under the Securities Act of 1933, as amended (the "Securities
Act"). Article IV of the Company's Amended and Restated Articles of
Incorporation (the "Articles") and Article VII of the Company's Bylaws provide
for indemnification of its directors, officers, employees and other agents to
the maximum extent permitted by the California Corporations Code.
In addition, the Company has entered into contractual agreements with
certain directors and officers of the Company designated by the Board to
indemnify such individuals to the full extent permitted by law. These agreements
also resolve certain procedural and substantive matters that are not covered, or
are covered in less detail, in the Bylaws or by the California Corporations
Code.
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 California Corporations Code, the Company's Articles,
the foregoing Bylaw provisions or the Company's indemnification agreements, the
Company has been informed that in the opinion of the 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company in
a successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Company will, unless in the opinion of its counsel the
question has already 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed in the Exhibit
Index elsewhere herein.
-2-
<PAGE> 5
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 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.
(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 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, 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 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 Registrant pursuant to the California
Corporations Code, the Articles or the Bylaws of Registrant,
indemnification agreements entered into between Registrant and
its officers and directors, or otherwise, Registrant has been
advised that in the opinion of the 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 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 hereunder,
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.
-3-
<PAGE> 6
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 Redwood City, State of California, on this 11th day
of May 1998.
ANERGEN, INC.
By: /s/ BARRY M. SHERMAN
---------------------------
Barry M. Sherman, M.D.
President and Chief Executive Officer
-4-
<PAGE> 7
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints Barry M. Sherman, M.D. and
David V. Smith and each of them, as his or her attorney-in-fact, with the full
power of substitution, for him or her in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8 (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,
hereby ratifying and confirming all of said attorney-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 BELOW BY THE FOLLOWING PERSONS ON THE
11TH DAY OF MAY 1998, IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ Barry M. Sherman, M.D. President, Chief Executive Officer,
- -------------------------------------- Secretary and Director (Principal
(Barry M. Sherman, M.D.) Executive Officer)
/s/ David V. Smith Vice President, Finance and Chief
- -------------------------------------- Financial Officer (Principal
(David V. Smith) Financial and Accounting Officer)
/s/ Bruce L.A. Carter, Ph.D. Director
- --------------------------------------
(Bruce L. A. Carter, Ph.D.)
/s/ Nicholas J. Lowcock Director
- --------------------------------------
(Nicholas J. Lowcock)
/s/ Harden M. McConnell, Ph.D. Director
- --------------------------------------
(Harden M. McConnell, Ph.D.)
/s/ Harry H. Penner, Jr. Director
- --------------------------------------
(Harry H. Penner, Jr.)
/s/ James E. Thomas Director
- --------------------------------------
(James E. Thomas)
/s/ Nichole Vitullo Director
- --------------------------------------
(Nicole Vitullo)
</TABLE>
-5-
<PAGE> 8
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
4.1 1996 Stock Plan together with forms of agreements used thereunder.(1)
4.2 1991 Employee Stock Purchase Plan together with forms of agreements
used thereunder.(2)
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, a Professional
Corporation.
23.1 Consent of Counsel (Contained in Exhibit 5.1 above).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
25.1 Power of Attorney (see page II-4).
</TABLE>
- --------
(1) Exhibit 4.1 is incorporated by reference to the Registration Statement on
Form S-8 filed by Anergen, Inc. on August 15, 1997 (Registration No.
333-33771).
(2) Exhibit 4.2 is incorporated by reference to the Registration Statement on
Form S-8 filed by Anergen, Inc. on August 15, 1997 (Registration No.
333-33771).
-1-
<PAGE> 1
EXHIBIT 5.1
May 11, 1998
Anergen, Inc.
301 Penobscot Drive
Redwood City, CA 94063
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about May 11, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,500,000 shares (the "Shares") of your
Common Stock, of which 1,000,000 are to be issued pursuant to the 1996 Stock
Plan and 500,000 are to be issued pursuant to the 1991 Employee Stock Purchase
Plan (collectively, the "Plans"). As your legal counsel, we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the issuance and sale of the Shares.
It is our opinion that, when issued and sold in the manner described in
the Plans and pursuant to the agreements which accompany the Plans, the Shares
will be legally and validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the 1996 Stock Plan and the 1991 Employee
Stock Purchase Plan of our report dated February 6, 1998, with respect to the
financial statements of Anergen, Inc. included in its Annual Report on Form 10-K
for the year ended December 31, 1997, filed with the Securities and Exchange
Commission.
Palo Alto, California /s/ ERNST & YOUNG LLP
May 8, 1998
