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As filed with the Securities and Exchange Commission on January 16, 1997
REGISTRATION NO. 333-
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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
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TRANSKARYOTIC THERAPIES, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C>
DELAWARE 04-3027191
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
195 ALBANY STREET, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices) (Zip Code)
</TABLE>
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1993 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
RICHARD F SELDEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Transkaryotic Therapies, Inc.
195 Albany Street
Cambridge, MA 02139
(Name and Address of Agent For Service)
(617) 349-0200
(Telephone Number, Including Area Code
of Agent For Service)
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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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Title Of Securities To Be Amount To Be Proposed Proposed Maximum Amount Of
Registered Registered Maximum Offering Aggregate Offering Registration Fee
Price Per Share(1) Price(1)
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 231,429 $18.625 $4,310,365 $1,302.20
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<FN>
(1) Estimated solely for the purpose of determining the registration fee and computed pursuant to Rule 457(h)
based upon the average of the high and low sale prices on January 10, 1997 as reported by the Nasdaq
National Market System.
</TABLE>
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Page 1 of 10
Exhibit Index appears at 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 the documents sent or
given to participants in the 1993 Non-Employee Director Stock Option Plan of
Transkaryotic Therapies, Inc. (the "Registrant") pursuant to Rule 428(b)(1) of
the Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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 "Commission"). The following documents filed with the Commission
are incorporated herein by reference:
(a) 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), or otherwise, under the Securities Act that contains, either
directly or by incorporation by reference, audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed.
(b) All reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the annual
report or prospectus referred to in (a) above.
(c) The description of the common stock of the Registrant, par value
$.01 per share, (the "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.
(d) The Registrant's definitive proxy statement or information
statement, if any, filed pursuant to Section 14 of the Exchange Act in
connection with the latest annual meeting of its stockholders, and any
definitive proxy or information statements so filed in connection with any
subsequent special meetings of its stockholders.
(e) Information as to stock options, including the amount outstanding,
exercises, prices and expiration dates, included in the Registrant's definitive
proxy statement, described in (d) above and which will be included in the future
either in the Registrant's proxy statements, annual reports or appendices to the
prospectus.
All documents filed after the date of this Registration Statement by
the Registrant pursuant to Section 13(a), 13(d), 14 and 15(d) of the Exchange
Act and prior to the filing of a post-effective amendment that indicates that
all shares of Common Stock offered hereunder have been sold or which deregisters
all shares of Common Stock 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.
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Not Applicable.
Page 2 of 10
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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.
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Section 145 of the Delaware General Corporation Law permits the
Registrant to indemnify directors, officers, employees and agents of the
Registrant against actual and reasonable expenses (including attorneys' fees)
incurred by them in connection with any action, suit or proceeding brought
against them by reason of their status or service as a director, officer,
employee or agent by or on behalf of the Registrant, and against expenses
(including attorneys' fees), judgments, fines and settlements actually and
reasonably incurred by him in connection with any such action, suit or
proceeding, if (i) he acted in good faith and in a manner he reasonably believed
to be in or not opposed to the best interests of the Registrant, and (ii) in the
case of a criminal proceeding, he had no reasonable cause to believe his conduct
was unlawful. Except as ordered by a court, no indemnification shall be made in
connection with any proceeding brought by or in the right of the corporation
where the person involved is adjudged to be liable to the Registrant.
Article VII of the Registrant's Restated Certificate of Incorporation
provides that a director shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that elimination or limitation of liability is not
permitted under the Delaware General Corporation Law as in effect when such
liability is determined.
Article VIII of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify each 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, by reason of the fact that he
is or was, or has agreed to become a director or officer of the Registrant, or
is or was serving, or has agreed to serve at the request of the Registrant as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise. The
indemnification provided for in Article VIII is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons. Article VIII further permits the Board of Directors to authorize
the grant of indemnification rights to other employees and agents of the
Registrant and such rights may be equivalent to, or greater or less than, those
set forth in Article VIII.
Article VIII of the Registrant's Restated Certificate of Incorporation
also provides that the Registrant shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Registrant, or 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 against any liability asserted against
such person and incurred by such person in any such capacity or arising out of
such person's status as such. The Registrant maintains insurance for directors
and officers.
Article VIII, Section 8 of the Registrant's By-Laws provides that the
Registrant shall indemnify any and all of its directors or officers, who serve
as an officer or director of the Registrant or of any other corporation at the
request of the Registrant, to the fullest extent permitted under and in
accordance with the laws of the state of Delaware.
Page 3 of 10
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Item 7. Exemption from Registration Claimed.
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Not Applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
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(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 this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth in this
Registration Statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if 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 Securities Exchange Act of 1934 that are
incorporated by reference in this 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 that is incorporated by reference
in this 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.
Page 4 of 10
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(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 provisions referred to in Item 6
hereof, 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.
Page 5 of 10
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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 Cambridge, Massachusetts, on this 16th day of
January, 1997.
TRANSKARYOTIC THERAPIES, INC.
By: /s/ Richard F Selden
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Richard F Selden
President and Chief Executive Officer
Page 6 of 10
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POWER OF ATTORNEY
We, the undersigned officers and directors of Transkaryotic Therapies,
Inc. hereby severally constitute and appoint Richard F Selden and Michael
Lytton, and each of them singly, our true and lawful attorneys-in-fact, with
full power to them in any and all capacities, to sign any and all amendments
to this Registration Statement on Form S-8 including any post-effective
amendments thereto, and to file the same, with 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 may do
or cause to be done by virtue hereof.
<TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated:
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Richard F Selden President, Chief Executive January 16, 1997
- ----------------------------- Officer and Director
Richard F Selden (Principal Executive
Officer)
/s/ Anthony R. Hall Vice President, Finance and January 16, 1997
- ----------------------------- Administration; Chief Financial
Anthony R. Hall Officer (Principal Financial and
Accounting Officer)
/s/ William R. Miller Director January 16, 1997
- -----------------------------
William R. Miller
/s/ Rodman W. Moorhead, III Director January 16, 1997
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Rodman W. Moorhead, III
/s/ James E. Thomas Director January 16, 1997
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James E. Thomas
</TABLE>
Page 7 of 10
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<TABLE>
EXHIBIT INDEX
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<CAPTION>
Exhibit Number Description Page Number
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<S> <C> <C>
4.1 Restated Certificate of Incorporation of the Registrant. (1)
4.2 Amended and Restated By-laws of the Registrant. (1)
4.3 Specimen certificate for shares of Common Stock, $.01
par value per share of the Registrant. (2)
5.1 Opinion of Palmer & Dodge LLP as to the legality of
the securities registered hereunder. 9
23.1 Consent of Ernst & Young LLP, independent auditors. 10
23.2 Consent of Palmer & Dodge LLP (contained in
Opinion of Palmer & Dodge LLP, filed as Exhibit
5.1).
24.1 Power of Attorney (set forth on the signature page to
this Registration Statement).
<FN>
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(1) Filed as an exhibit to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996 (File No. 0-21481) on November 26, 1996 and incorporated herein by
reference.
(2) Filed as an exhibit to the Registrant's Registration Statement on Form S-1 (File No. 333-10845)
declared effective on October 16, 1996 and incorporated herein by reference.
</TABLE>
Page 8 of 10
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Exhibit 5.1
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PALMER & DODGE LLP
ONE BEACON STREET
BOSTON, MA 02108-3190
January 16, 1997
Transkaryotic Therapies, Inc.
195 Albany Street
Cambridge, Massachusetts 02139
Re: 1993 Non-Employee Director Stock Option Plan
--------------------------------------------
Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by Transkaryotic
Therapies, Inc. (the "Company") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof. The Registration Statement relates to 231,429 shares (the
"Shares") of the Company's Common Stock, $0.01 par value, offered pursuant to
the provisions of the Company's 1993 Non-Employee Director Stock Option Plan
(the "Plan").
We have examined the Restated Certificate of Incorporation of the
Company, the Amended and Restated 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 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, will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement.
Very truly yours,
/s/ Palmer & Dodge LLP
PALMER & DODGE LLP
Page 9 of 10
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Exhibit 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) for the registration of 231,429 shares of common stock pertaining to the
1993 Non-Employee Director Stock Option Plan of Transkaryotic Therapies, Inc. of
our report dated February 23, 1996, with respect to the financial statements of
Transkaryotic Therapies, Inc. included in its Registration Statement (Form S-1
No. 333-10845), as amended, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Boston, Massachusetts
January 15, 1997
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