As Filed with the Securities and Exchange Commission on January 12, 1998
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
TRIMERIS, INC.
(Exact name of issuer as specified in its charter)
Delaware 56-1808663
(State of Incorporation) (IRS Employer Identification Number)
4727 University Drive, Suite 100, Durham, North Carolina 27707
(Address of Principal Executive Offices)
(919) 419-6050
(Registrant's telephone number, including area code)
TRIMERIS, INC.
1997 Employee Stock Purchase Plan
(Full title of the Plan)
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Dr. M. Ross Johnson
President, Chief Executive Officer and Chief Scientific Officer
Trimeris, Inc.
4727 University Drive, Suite 100
Durham, North Carolina 27707
(919) 419-6050
(Name, address and telephone number of agent for service)
----------------------------
Copy to:
John B. Watkins, Esquire Merrill M. Mason, Esquire
Wilmer, Cutler & Pickering Hutchison & Mason PLLC
2445 M Street, N.W. 4011 Westchase Blvd. Suite 400
Washington, DC 20037 Raleigh, NC 27607
(202) 663-6000 (919) 829-9600
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CALCULATION OF REGISTRATION FEE
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- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee (2)
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
<S> <C> <C> <C> <C>
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Common Stock, 250,000 shares $ 13.25 $ 3,312,500 $ 1,004.00
par value $0.001 per
share
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
</TABLE>
(1) Also registered hereunder are such additional number of shares of Common
Stock, presently indeterminable, as may be necessary to satisfy the antidilution
provisions of the Plan to which this Registration Statement relates.
(2) The registration fee has been calculated in accordance with Rule 457(h) with
respect to the 250,000 shares of Common Stock registered hereby on the basis of
the average of the high and low sale prices reported on The Nasdaq National
Market ("Nasdaq") on January 8, 1998.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
<PAGE>
Note: The document(s) containing the information required by Item 1 of
Form S-8 and the statement of availability of registrant information and any
other information required by Item 2 of Form S-8 will be sent or given to
participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the requirements
of Part I of Form S-8, such documents are not being filed with the Securities
and Exchange Commission (the "Commission") either as part of this Registration
Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Trimeris, Inc. (the "Registrant" or the "Company")
shall maintain a file of such documents in accordance with the provisions of
Rule 428. Upon request, the Registrant shall furnish the Commission or its staff
a copy or copies of all of the documents included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The Company hereby incorporates by reference the documents listed in
(a) through (c) below. In addition, all documents subsequently filed by the
Company pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (prior to filing of a
Post-Effective Amendment that indicates that all securities offered 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.
(a) The Company's Prospectus dated October 7, 1997 filed pursuant to
Rule 424(b) on October 7, 1997.
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since December 31, 1996.
(c) The description of the Company's Common Stock that is incorporated
by reference in the Registration Statement on Form 8-A filed by the Company
under the Exchange Act on October 1, 1997, including any amendment or report
filed for the purpose of updating such description.
Item 4. Description of Securities
Inapplicable.
Item 5. Interests of Named Experts and Counsel
The validity of the authorization and issuance of the Common Stock
offered hereby will be passed upon for the Company by Hutchinson & Mason PLLC,
Raleigh, North Carolina. Hutchinson & Mason PLLC serves as corporate counsel
to the Registrant and has received and is expected to receive payment for
legal services rendered or to be rendered on an ongoing basis to the
Registrant. Attorneys with Hutchinson & Mason PLLC own an aggregate of 6,730
shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law (the "DGCL")
permits indemnification of officers and directors of the Company under certain
conditions and subject to certain limitations. Section 145 of the DGCL also
provides that a corporation has the power to purchase and maintain insurance on
behalf of its officers and directors against any liability asserted against such
person and incurred by him and her in such capacity, or arising out of his or
her status as such, whether or not
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the corporation would have the power to indemnify him or her against such
liability under the provisions of Section 145 of the DGCL.
The Company's Third Amended and Restated Certificate of Incorporation
contains certain provisions permitted under DGCL relating to the liability of
directors. These provisions eliminate a director's personal liability for
monetary damages resulting from a breach of fiduciary duty, except in certain
circumstances involving certain wrongful acts, such as (i) for any breach of the
director's duty of loyalty to the Company 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 DGCL, (iv) for any transaction
from which the director derives an improper personal benefit or (v) acts or
omissions occurring prior to the date of these provisions. The provisions do no
limit or eliminate the rights of the Company or any stockholder to seek
equitable relief, such as an injunction or rescission, in the event of a breach
of director's fiduciary duty. These provisions will not alter a director's
liability under federal securities laws. The Company's Third Amended and
Restated Certificate of Incorporation also contains provisions indemnifying the
directors and officers of the Company to the fullest extent permitted by DGCL.
The Amended and Restated Bylaws of the Company provide that the Company
shall indemnify its directors and executive officers to the fullest extent
permitted by the DGCL. The rights to indemnity thereunder continue as to a
person who has ceased to be a director, officer, employee or agent and inure to
the benefit of the heirs, executors and administrators of the person. In
addition, expenses incurred by a director or officer in defending any civil,
criminal, administrative or investigative action, suit or proceeding by reason
of the fact that he or she is or was a director or officer of the Company (or
was serving at the Company's request as a director or officer of another
corporation) shall be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he or she is not entitled to be indemnified by the Company as
authorized by the relevant section of the DGCL.
The Company has entered into indemnification agreements with each of
its directors and executive officers. Generally, the indemnification agreements
will provide the maximum protection available under the Third Amended and
Restated Certificate of Incorporation, the Amended and Restated Bylaws and the
DGCL as it may be amended from time to time. Under such indemnification
agreements, however, an individual will not receive indemnification for
judgments, settlements or expenses if he or she is found liable to the Company
(except to the extent the court determines he or she is fairly and reasonably
entitled to indemnity for expenses), for settlements not approved by the Company
or for settlements and expenses if the settlement is not approved by the court.
The indemnification agreements provide for the Company to advance to the
individual any and all expenses (including attorneys' fees) incurred in
investigating or defending any such action, suit or proceeding. Also, the
individual must repay such advances upon a final judicial decision that he or
she is not entitled to indemnification.
The Underwriting Agreement (filed as an Exhibit to the Registrant's
Registration Statement on Form S-1, File No. 333-31109, filed with the
Commission on October 6, 1997) contains provisions by which the Underwriters
have agreed, severally and not jointly, to indemnify and hold harmless the
Registrant, each person, if any, who controls the Registrant, within the meaning
of Section 15 of the Securities Act, each director of the Registrant, and each
officer of the Registrant who signed such Registration Statement, from and
against any liability caused by any information furnished in writing by the
underwriters for use in such Registration Statement.
The Trimeris, Inc. Amended and Restated Stock Incentive Plan and the
Trimeris, Inc. 1997 Employee Stock Purchase Plan (collectively, the "Plans")
provide that no member of the Board of Directors of the Registrant shall be
liable for any action or determination relating to the Plans and that no
director or person acting pursuant to authority delegated by the Board of
Directors pursuant to the terms of the Plans shall be liable for any action or
determination under the Plans made in good faith.
The Registrant also carries directors' and officers' liability
insurance covering its officers and directors.
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Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
Number Description
4.1* Third Amended and Restated Certificate of Incorporation of
the Registrant.
4.2* Amended and Restated By-Laws of the Registrant.
4.3* Trimeris, Inc. 1997 Employee Stock Purchase Plan.
4.4* Specimen certificate representing the Common Stock of
Registrant.
5.1 Opinion of Hutchinson & Mason PLLC.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Hutchinson & Mason PLLC (included in Exhibit
5.1).
24.1 Power of Attorney (included as part of the signature page to
this Registration Statement).
------------------
* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-31109).
Item 9. Undertakings
The undersigned Registrant hereby undertakes the following:
(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 1993;
(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
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thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the registration statement;
(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) 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
Sections 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the 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 Sections 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of any employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) 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) The undersigned registrant hereby undertakes, that, 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 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 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 of 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Durham, County of Durham, State of North
Carolina on January 12, 1998.
TRIMERIS, INC.
/s/ M. Ross Johnson
-----------------------------------------
M. Ross Johnson
President, Chief Executive Officer and Chief
Scientific Officer
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<PAGE>
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints M. Ross Johnson or Matthew A. Megaro his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him or in his name, place and stead, in any and all
capacities to sign any and all amendments or post-effective amendments to this
Registration Statement, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent or his substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on this 12th day of January 1998.
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<S> <C>
/s/ Jesse I. Treu /s/ Andrew McCreath
- -------------------- -------------------
Jesse I. Treu, Ph.D. Andrew McCreath
Chairman of the Board of Directors Director
/s/ Dani P. Bolognesi /s/ Matthew A. Megaro
- ------------------------ -------------------------------------------------
Dani P. Bolognesi, Ph.D. Matthew A. Megaro
Director Chief Operating Officer, Chief Financial Officer,
Executive Vice President and Secretary (Principal
Accounting and Financial Officer)
/s/ Brian H. Dovey /s/ Charles A. Sanders
- ------------------ ------------------------
Brian H. Dovey Charles A. Sanders, M.D.
Director Director
/s/ M. Ross Johnson
- ----------------------
M. Ross Johnson, Ph.D.
President, Chief Executive Officer, Chief Scientific
Officer and Director (Principal Executive Officer)
</TABLE>
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<PAGE>
EXHIBITS
to
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933, AS AMENDED
TRIMERIS, INC.
(Exact name of registrant as specified in its charter)
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<PAGE>
Exhibit Index
Number Description
4.1* Third Amended and Restated Certificate of
Incorporation of the Registrant.
4.2* Amended and Restated By-Laws of the Registrant.
4.3*. Trimeris, Inc. 1997 Employee Stock Purchase Plan.
4.4* Specimen certificate representing the Common
Stock of Registrant.
5.1 Opinion of Hutchinson & Mason PLLC.
23.1 Consent of KPMG Peat Marwick LLP.
23.2 Consent of Hutchinson & Mason PLLC (included
in Exhibit 5.1).
24.1 Power of Attorney (included as part of the
signature page to this Registration Statement).
------------------
* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 333-31109).
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January 12, 1998
Trimeris, Inc.
4727 University Drive
Suite 200
Durham, North Carolina 27707
Gentlemen:
We refer to the registration statement on Form S-8 (the "Registration
Statement"), to be filed by Trimeris, Inc. (the "Company") with the Securities
and Exchange Commission on or about January 12, 1998 under the Securities Act
of 1933, as amended, relating to the registration of an aggregate of 250,000
shares (the "Shares") of common stock of the Company, par value $0.001 per share
(the "Common Stock"), by the Company pursuant to the Trimeris, Inc. 1997
Employee Stock Purchase Plan (the "Plan").
As counsel for the Company, we have examined such corporate records, other
documents and such questions of law as we have considered necessary or
appropriate for the purposes of this opinion. In our examination of the
foregoing documents, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as copies, the authenticity
of the originals of such documents and the legal competence of all signatories
to such documents.
We assume that the appropriate action will be taken, prior to the offer and
sale of the Shares to register and qualify the Shares for sale under all
applicable state securities laws. We further assume that all Shares issued or to
be granted pursuant to the Plan will be issued in accordance with the terms of
such Plan and that the purchase price of the Shares will be greater than or
equal to the par value per share of the Shares.
Based upon and subject to the foregoing, we advise you that, in our
opinion, (i) the Plan has been duly adopted and authorized by the board of
directors and the stockholders of the Company, and (ii) the Shares, when issued
in accordance with the terms of the Plan, will be legally issued, fully paid and
nonassessable.
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
We express no opinion herein as to the laws of any state or jurisdiction other
than the state laws of the North Carolina, the Delaware General Corporation Law
and the federal laws of the United States of America.
<PAGE>
Trimeris, Inc.
January 12, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our name therein under the
caption "Interests of Named Experts and Counsel." This consent is not to be
construed as an admission that we are a person whose consent is required to be
filed with the Registration Statement under the provisions of the Securities Act
of 1933.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matter.
Very truly yours,
/s/ Hutchinson & Mason PLLC
---------------------------
Hutchinson & Mason PLLC
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
The Board of Directors and Stockholders
Trimeris, Inc.:
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Trimeris, Inc. (A Development Stage Company), for the 1997 Employee Stock
Purchase Plan, of our report dated March 17, 1997, except for Note 11(a) as to
which the date is June 30, 1997, relating to the balance sheets of Trimeris,
Inc. as of December 31, 1995 and 1996, and the related statements of operations,
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended December 31, 1996 and for the cumulative period from the
date of inception to December 31, 1996, which report appears in the
October 7, 1997 Prospectus of Trimeris, Inc.
/s/ KPMG Peat Marwick LLP
-------------------------
KPMG Peat Marwick LLP
Raleigh, North Carolina
January 9, 1998
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