<PAGE> 1
As filed with the Securities and Exchange Commission on October 2, 1996
REGISTRATION STATEMENT NO. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
-------------------------
VIRUS RESEARCH INSTITUTE, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 22-3098869
(State of incorporation) (I.R.S. Employer Identification Number)
61 MOULTON STREET
CAMBRIDGE, MA 02138
(617) 864-6232
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
VIRUS RESEARCH INSTITUTE, INC.
1992 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
------------------------------------
J. BARRIE WARD, PH.D.
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
VIRUS RESEARCH INSTITUTE, INC.
61 MOULTON STREET
CAMBRIDGE, MA 02138
(617) 864-6232
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
----------------------------
With copies to:
PAUL W. LEE, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
-----------------------------
<TABLE>
CALCULATION OF REGISTRATION FEE
=========================================================================================================================
<CAPTION>
Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Aggregate Offering Price Registration Fee
Share
- -------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par 1,016,944 $ 2.52(2) $2,562,698.88 $ 883.69
value 689,192 $7.9375(3) $5,470,461.50 $1,886.37
Total: 1,706,136 - - $8,033,160.38 $2,770.06
=========================================================================================================================
<FN>
(1) Plus such additional number of shares as may be required pursuant to Virus
Research Institute, Inc. 1992 Equity Incentive Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization or other similar
event or forfeited under the terms of the Plans.
(2) This estimate is made pursuant to Rule 457(h) under the Securities Act of
1933, as amended (the "Securities Act"), solely for the purpose of
determining the registration fee and is based upon the weighted average
price at which outstanding options may be exercised.
(3) This estimate is based on the average of the high and low sales prices of
the Common Stock as reported on the Nasdaq National Market on the close of
business on September 30, 1996, pursuant to Rule 457(c) and (h) under the
Securities Act, solely for purposes of determining the registration fee.
</TABLE>
================================================================================
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUSES
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act") and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
Virus Research Institute, Inc. (the "Company") hereby incorporates by
reference the documents listed in (a) through (c) below, which have previously
been filed with the Securities and Exchange Commission (the "SEC").
(a) The Company's final prospectus, filed with the SEC on June 6,
1996 pursuant to Rule 424(b) of the Securities Act;
(b) All other reports filed with the SEC since June 6, 1996 pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); and
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A, filed with the SEC on May 14,
1996, as amended, under Section 12 of the Exchange Act and any
amendments or reports filed for the purpose of updating such
description.
In addition, all documents subsequently filed with the SEC by the
Company pursuant to Sections 13(a) and 13(c), Section 14 and Section 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment hereto that
indicates that all securities offered hereunder have been sold or that
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this registration statement and to be a part hereof
from the date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is incorporated or deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not Applicable.
2
<PAGE> 3
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Subsection (a) of Section 145 of the General Corporation Law of the
State of Delaware (the "GCLD") empowers a corporation to 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
corporation) by reason of the fact that he or she is or was a director, officer,
employee or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
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 that he or
she 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 or her conduct was unlawful. Under subsection
(a) the termination of any action, suit or proceeding by judgment, order,
settlement, conviction or upon a plea of nolo contendere or its equivalent,
shall 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 corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his or her
conduct was unlawful.
Subsection (b) of Section 145 of the GCLD empowers a corporation to
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
corporation to procure a judgment in its favor by reason of the fact that he or
she is or was a director, officer, employee or agent of the corporation, or is
or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise 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
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been found to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
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 Court of Chancery or such other court
shall deem proper.
Subsection (d) of Section 145 of the GCLD permits indemnification
under subsections (a) and (b) of Section 145 only if authorized in the specific
case following a determination that the individual seeking indemnification has
met the standard of conduct required by the applicable subsection. Such
determination shall be made (1) by a majority vote of the directors who are not
parties to such action, suit or proceeding, even though less than a quorum, or
(2) if there are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by the stockholders.
Section 145 further provides that to the extent a director or officer
of a corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding referred to in subsections (a) and (b) of Section
145 in the defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith; that indemnification provided
for by Section 145 shall not be deemed exclusive of any other rights to which
the indemnified party may be entitled; that indemnification provided for by
Section 145 shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of such person's heirs, executors and
administrators; and that the corporation has the power to purchase and maintain
insurance on behalf of a director or officer of the corporation against any
liability asserted against him or her and incurred by him or her in any such
capacity, or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such
liabilities under Section 145.
3
<PAGE> 4
The Amended and Restated By-laws of the Company (the "By-laws")
provide that directors and officers of the Company shall be, and at the
discretion of the Board of Directors non-officer employees may be, indemnified
by the Company to the fullest extent authorized by GCLD, as it now exists or may
in the future be amended, against all expenses and liabilities reasonably
incurred in connection with service for or on behalf of the Company and further
permits the advancing of expenses incurred in defending claims. The By-laws of
the Company also provide that the right of directors and officers to
indemnification shall be a contract right and shall not be exclusive of any
other right now possessed or hereafter acquired under any By-law, agreement,
vote of stockholders or otherwise.
Section 102(b)(7) of the GCLD provides that a certificate of
incorporation may contain a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director provided that such provision
shall not eliminate or limit the liability of a director (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 GCLD, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Amended and Restated Certificate of Incorporation of the Company
contains a provision that generally eliminates the personal liability of
directors for monetary damages for breaches of their fiduciary duty, including
breaches involving negligence or gross negligence in business combinations,
unless the director has breached his duty of loyalty, failed to act in good
faith, engaged in intentional misconduct or a knowing a violation of law, paid a
dividend or approved a stock repurchase in violation of the GCLD or obtained an
improper personal benefit.
The Company carries directors' and officers' liability insurance
covering its directors and officers.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
<TABLE>
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement:
<S> <C>
+4.1 Amended and Restated Certificate of Incorporation of Virus Research Institute, Inc.
+4.2 Amended and Restated By-Laws of Virus Research Institute, Inc.
++4.3 Virus Research Institute, Inc. 1992 Equity Incentive Plan, as amended and restated.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion filed as Exhibit 5.1
hereto).
23.2 Consent of Richard A. Eisner & Company, LLP, Independent Accountants.
24.1 Power of Attorney (included on the signature page of this registration statement).
<FN>
- ---------------
+ Incorporated by reference to the relevant exhibit to Virus Research
Institute, Inc.'s Form 10-Q for the quarter ended June 30, 1996 as filed
with the SEC on August 8, 1996.
++ Incorporated by reference to the relevant exhibit to Virus Research
Institute, Inc.'s Registration Statement on Form S-1 (File No. 333-3378) as
filed with the SEC on June 6, 1996.
</TABLE>
4
<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:
(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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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) herein do
not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the undersigned
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; and
(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 foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
SEC 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
5
<PAGE> 6
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.
6
<PAGE> 7
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, Commonwealth of Massachusetts, on this
30th day of September, 1996.
VIRUS RESEARCH INSTITUTE, INC.
By: /s/ J. Barrie Ward, Ph.D.
----------------------------------
J. Barrie Ward, Ph.D., Chief Executive
Officer and Chairman of the Board
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Virus Research Institute, Inc. hereby severally constitute J.
Barrie Ward, Ph.D. and William A. Packer, and each of them singly, to sign for
us and in our names in the capacities indicated below, the Registration
Statement filed herewith and any and all amendments to said Registration
Statement (or any registration statement for the same offering that is to be
effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933,
and all requirements of the Securities and Exchange Commission, hereby ratifying
and conforming our signatures as they may be signed by our said attorneys, or
any of them, to said Registration Statement and any and all amendments thereto.
<TABLE>
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 date indicated.
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ J. Barrie Ward, Ph.D. Chief Executive Officer and Chairman September 30, 1996
- ---------------------------------- of the Board (principal executive officer)
J. Barrie Ward, Ph.D.
/s/ William A. Packer President, Chief Financial Officer and September 30, 1996
- ---------------------------------- Director (principal financial officer)
William A. Packer
/s/ David H. Ramsdell Vice President-Finance September 30, 1996
- ---------------------------------- (principal accounting officer)
David H. Ramsdell
/s/ Costas E. Anagnostopoulos Director September 30, 1996
- ----------------------------------
Costas E. Anagnostopoulos
</TABLE>
7
<PAGE> 8
<TABLE>
<S> <C> <C>
/s/ John W. Littlechild Director September 30, 1996
- ----------------------------------
John W. Littlechild
/s/ Alan M. Mendelson Director September 30, 1996
- ----------------------------------
Alan M. Mendelson
/s/ F.W. Kyle Director September 30, 1996
- ----------------------------------
F.W. Kyle
</TABLE>
8
<PAGE> 9
<TABLE>
EXHIBIT INDEX
<CAPTION>
Exhibit No. Description Page
----------- ----------- ----
<S> <C>
+4.1 Amended and Restated Certificate of Incorporation of Virus Research
Institute, Inc.
+4.2 Amended and Restated By-Laws of Virus Research Institute, Inc.
++4.3 Virus Research Institute, Inc. 1992 Equity Incentive Plan, as amended
and restated
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their
opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Richard A. Eisner & Company, LLP, Independent Accountants.
24.1 Power of Attorney (included on the signature page of this registration
statement).
<FN>
- ----------------
+ Incorporated by reference to the relevant exhibit to Virus Research
Institute, Inc.'s Form 10-Q for the quarter ended June 30, 1996 as filed
with the SEC on August 8, 1996.
++ Incorporated by reference to the relevant exhibit to Virus Research
Institute, Inc.'s Registration Statement on Form S-1 (File No. 333-3378) as
filed with the SEC on June 6, 1996.
</TABLE>
9
<PAGE> 1
Exhibit 5.1
-----------
September 30, 1996
Virus Research Institute, Inc.
61 Moulton Street
Cambridge, Massachusetts 02138
Re: Virus Research Institute, Inc. 1992 Equity Incentive Plan
---------------------------------------------------------
Dear Ladies and Gentlemen:
This opinion is furnished in connection with the registration pursuant
to the Securities Act of 1933, as amended (the "Act"), of 1,706,136 shares (the
"Shares") of Common Stock, par value $.001 per share (the "Common Stock"), of
Virus Research Institute, Inc. (the "Company") which may be issued pursuant to
awards granted under the Company's 1992 Equity Incentive Plan (the "Plan").
We have acted as counsel to the Company in connection with the
registration of the Shares under the Act. We have examined the Sixth Restated
Certificate of Incorporation and the Amended and Restated By-laws of the
Company, each as amended to date; such records of the corporate proceedings of
the Company as we have deemed necessary; a Registration Statement on Form S-8
under the Act relating to the Shares (the "Registration Statement"); and such
other certificates, receipts, records and documents as we have considered
necessary for the purposes of this opinion.
We are attorneys admitted to practice in the Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America, the Commonwealth of
Massachusetts, and the General Corporation Law of the State of Delaware.
Based upon the foregoing, we are of the opinion that upon the issuance
and delivery of, and payment for, the Shares in accordance with the terms of the
Registration Statement, the Plan and the option agreements under the Plan, the
Shares will be legally issued, fully paid and non-assessable shares of the
Company's Common Stock.
The foregoing assumes that all requisite steps will be taken to comply
with the requirements of the Act and applicable requirements of state laws
regulating the offer and sale of securities. The foregoing further assumes that
the purchase price paid for the Shares is in excess of the par value thereof.
<PAGE> 2
Virus Research Institute, Inc.
September 30, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
above-referenced Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of Virus Research Institute, Inc. (the "Company") of our
report dated January 29, 1996 (with respect to Note A May 13, 1996) on the
financial statements of the Company for each of the years in the three-year
period ended December 31, 1995 appearing in the Company's final prospectus filed
with the Securities and Exchange Commission on June 6, 1996.
/s/ Richard A. Eisner & Company, LLP
Richard A. Eisner & Company, LLP
Cambridge, Massachusetts
September 30, 1996
