<PAGE> 1
As filed with the Securities and Exchange Commission on July 30, 1998
Registration Nos. 33-44941, 33-52186, 33-70586,
33-95660, 333-33771 and 333-52429
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ANERGEN, INC.
(Exact name of issuer as specified in its charter)
Delaware 77-0183594
- ----------------------- ------------------------------------
(State of Incorporation) (I.R.S. Employer Identification No.)
301 Penobscot Drive
Redwood City, California 94063
(Address of principal executive offices)
1988 STOCK OPTION PLAN
1991 EMPLOYEE STOCK PURCHASE PLAN
1992 CONSULTANT STOCK PLAN
1995 DIRECTOR OPTION PLAN
1996 STOCK 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 of agent for service)
Copies to:
TREVOR J. CHAPLICK, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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
================================================================================
<S> <C> <C> <C> <C>
N/A* N/A* N/A* N/A* N/A*
================================================================================
</TABLE>
* No additional securities are to be registered, and registration fees were paid
upon filing of the original Registration Statement Nos. 33-44941, 33-52186,
33-70586, 33-95660, 333-33771 and 333-52429.
Therefore, no further registration fee is required.
<PAGE> 2
ANERGEN, INC.
POST-EFFECTIVE AMENDMENT NO. 1 TO
REGISTRATION STATEMENT ON FORM S-8
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the "Amendment") to certain
Registration Statements on Form S-8 (File Nos. 33-44941, 33-52186, 33-70586,
33-95660, 333-33771 and 333-52429) (the "Registration Statements") is being
filed pursuant to Rule 414 under the Securities Act of 1933, as amended (the
"Securities Act") by Anergen, Inc., a Delaware corporation ("Anergen Delaware"
or the "Company" or the "Registrant"), which is the successor to Anergen, Inc.,
a California corporation ("Anergen California"), following a statutory merger
effective on July 16, 1998 (the "Merger") for the purpose of changing Anergen
California's state of incorporation. Prior to the Merger, Anergen Delaware had
no assets or liabilities other than nominal assets or liabilities. In connection
with the Merger, Anergen Delaware succeeded by operation of law to all of the
assets and liabilities of Anergen California. The Merger was approved by the
shareholders of Anergen California at a meeting for which proxies were solicited
pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
Except as modified by this Amendment (including modifications resulting
from the incorporation of documents by reference), Anergen Delaware, by virtue
of this Amendment, expressly adopts the Registration Statements as its own
registration statements for all purposes of the Securities Act and the Exchange
Act.
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Information Incorporated by Reference
In addition to the documents already incorporated by reference into the
Registration Statements, all documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, after the date of this
Prospectus 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
Prospectus and to be part hereof from the date of filing such documents.
ITEM 4. Description of Securities
Not applicable.
<PAGE> 3
ITEM 5. Interests of Named Experts and Counsel
Not applicable.
ITEM 6. Indemnification of Directors and Officers
In accordance with the General Corporation Law of Delaware (the "Delaware
law"), the Company's Certificate of Incorporation contains a provision which
limits the liability of directors to the maximum extent permitted by Delaware
Law as the same now exists or may hereinafter be amended. Section 102 of
Delaware law provides that directors of a corporation will not be personally
liable to the corporation or its stockholders for monetary damages for breach of
their fiduciary duties as directors, except for liability (i) for any breach of
their duty of loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
The Company's Bylaws provide that the Company shall indemnify its directors
and officers and may indemnify its employees and other agents to the fullest
extent permitted by law. The Company's Bylaws also permit the Company to secure
insurance on behalf of any officer, director, employee or other agent for any
liability arising out of his or her actions in such capacity, regardless of
whether the Company would have the power to indemnify him or her against such
liability under the Delaware Law. The Company currently has secured such
insurance on behalf of its officers and directors.
The Company has entered into agreements to indemnify its directors and
officers, in addition to indemnification provided for in the Company's Bylaws.
Subject to certain conditions, these agreements, among other things, indemnify
the Company's directors and officers for certain expenses (including attorney's
fees), judgments, fines and settlement amounts incurred by any such person in
any action or proceeding, including any action by or in the right of the
Company, arising out of such person's services as a director or officer of the
Company, any subsidiary of the Company or any other company or enterprise to
which the person provides services at the request of the Company
ITEM 8. Exhibits
<TABLE>
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
</TABLE>
II-2
<PAGE> 4
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 this Registration Statement or any material change to such
information in this 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 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 the
Registrant pursuant to the Delaware General Corporations Law, the Certificate of
Incorporation of the Registrant, the Bylaws of the Registrant, Indemnification
Agreements entered into between the Registrant and its officers and directors,
or otherwise, the 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 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.
II-3
<PAGE> 5
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-3 and has duly caused this Post-Effective
Amendment No. 1 on Form S-8 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Redwood City, State of California, on
the 31st day of July 1998.
ANERGEN, INC.
By: /s/ BARRY M. SHERMAN, M.D.
--------------------------------------
Barry M. Sherman, M.D.
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose signature
appears below constitutes and appoints, jointly and severally, Barry M. Sherman
and David F. Smith his or her attorneys-in-fact, each 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 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 BELOW BY THE FOLLOWING PERSONS ON THE ___
DAY OF JULY 1998, IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
- --------------------------- ---------------------------- --------------------
SIGNATURE TITLE
<S> <C> <C>
/s/ BARRY M. SHERMAN, M.D. President, Chief Executive
- --------------------------- Officer, Secretary and
(Barry M. Sherman, M.D.) Director (Principal
Executive Officer)
/s/ DAVID SMITH Vice President, Finance and
- --------------------------- Chief Financial Officer
(David Smith) (Principal Financial and
Accounting Officer)
/s/ BRUCE L.A. CARTER Director
- ---------------------------
(Bruce L. A. Carter, Ph.D.)
/s/ NICHOLAS J. LOWCOCK Director
- ---------------------------
(Nicholas J. Lowcock)
/s/ HARDEN M. MCCONNELL 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/ NICOLE VITULLO Director
- ---------------------------
(Nicole Vitullo)
</TABLE>
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<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION
- ------- -----------------------------------------------------------------------
<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati (see Exhibit 5.1)
24.1 Power of Attorney (see Page II-4)
</TABLE>
<PAGE> 1
Exhibit 5.1
July 31, 1998
Anergen, Inc.
301 Penobscot Drive
Redwood City, California 94063
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Anergen, Inc., a Delaware Corporation (the "Company"), with the Securities and
Exchange Commission on or about July 30, 1998 (the "Registration Statement") in
connection with the assumption pursuant to Rule 414 of the Securities Act of
1933, as amended, by the Company of certain Registration Statements on Form S-8
filed by the Company's predecessor, Anergen, Inc., a California Corporation
("Anergen California"), relating to shares of Common Stock of Anergen California
reserved for issuance under the certain stock plans (the "Plans") of Anergen
California. We understand that the Plans have been assumed by the Company and
that in accordance the terms of the Plans, the Company has reserved shares (the
"Shares") of Common Stock of the Company for issuance pursuant to the Plans. As
your counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with said issuance and
sale of the Shares pursuant to the Plans.
It is our opinion that, upon completion of the proceedings being taken or
contemplated by us to be taken prior to the issuance and sale of the Shares
pursuant to the Plans, and upon completion of the proceedings being taken in
order to permit such transaction to be carried out in accordance with the
securities laws of the various states where required, the Shares, when issued
and sold in the manner referred to in the Plans and the Registration Statement,
will be legally and validly issued, fully-paid and non-assessable.
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, including the prospectus constituting a part thereof,
and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
--------------------------------
