As filed with the Securities and Exchange Commission on January 12, 1998.
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
450 FIFTH STREET, N.W.
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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TRIMERIS, INC.
(Exact Name of Registrant as Specified in its Charter)
DELAWARE 56-1808663
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
4727 University Drive, Suite 100
Durham, NC 27707
(Address of Principal Executive Offices, including zip code)
TRIMERIS, INC.
AMENDED AND RESTATED STOCK
INCENTIVE PLAN
(Full Title of the Plan)
Dr. M. Ross Johnson Copy to:
Trimeris, Inc. Merrill M. Mason, Esq.
4272 University Drive, Suite 100 Hutchison & Mason PLLC
Durham, NC 27707 4011 Westchase Boulevard, Suite 400
(919) 419-6050 Raleigh, NC 27607
(Name, Address and Telephone (919) 829-9600
Number of Agent for Service)
<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Maximum Proposed Maximum
Offering Price Aggregate Offering Amount of
Title of Securities Amount To Be Per Share Price Registration
To Be Registered Registered(1) Fee
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Common Stock,
par value $0.001 per share 852,941 $13.25(2) $11,301,468(2) $3,425.00
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</TABLE>
(1) Plus such additional number of shares as may be required pursuant to
the Trimeris, Inc. Stock Incentive Plan (the "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 Plan.
(2) Estimated solely for purposes of calculating the registration fee. The
maximum offering price per share is based upon the average of the high
and low trading prices of the Common Stock of the Registrant as
reported on the Nasdaq National Market on January 8, 1998, in
accordance with Rules 457(c) and 457(h) of the Securities Act of 1933,
as amended.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a)
PROSPECTUS
Item 1. Plan Information *
Item 2. Registrant Information and Employee Plan Annual Information *
* As permitted by the rules of the Securities and Exchange Commission
(the "Commission"), the documents containing the information required
by Part I of Form S-8 are omitted from this Registration Statement. The
documents containing the information specified in Part I will be
delivered to the participants as required by Rule 428(b) promulgated
under the Securities Act of 1933, as amended (the "Securities Act").
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
Trimeris, Inc. (the "Registrant") hereby incorporates by reference in
this Registration Statement the following documents:
(a) The Registrant's final prospectus, filed with the Commission on
October 7, 1997, pursuant to Rule 424(b) of the Securities Act;
(b) All other reports filed with the Commission pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") since October 7, 1997; and
(c) The description of the Common Stock that is incorporated by
reference in the Registration Statement of the Registrant on Form 8-A
filed pursuant to Section 12(g) of the Exchange Act, including any
amendment or report filed for the purpose of updating such information.
In addition, all documents subsequently filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereby 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 a part hereof from the respective dates of filing of such
documents with the Commission.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Certain legal matters in connection with this registration will be
passed upon for the Registrant by Hutchison & Mason PLLC, Raleigh, North
Carolina. Hutchison & 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
Hutchison & Mason PLLC own an aggregate of 6,730 shares of Common Stock of the
Registrant.
<PAGE>
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 the corporation would have the power to
indemnify him or her against such liability under the provisions of Section 145
of the DGCL.
The Registrant's Third Amended and Restated Certificate of
Incorporation contains 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 Registrant 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. These
provisions do not limit or eliminate the rights of the Registrant 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 Registrant's
Third Amended and Restated Certificate of Incorporation also contains provisions
indemnifying the directors and officers of the Registrant to the fullest extent
permitted by DGCL.
The Amended and Restated Bylaws of the Registrant provide that the
Registrant 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 Registrant (or
was serving at the Registrant's request as a director or officer of another
corporation) shall be paid by the Registrant 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 Registrant
as authorized by the relevant section of the DGCL.
The Registrant has entered into indemnification agreements with each of
its directors and executive officers. Generally, the indemnification agreements
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 Registrant (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 Registrant or
for settlements and expenses if the settlement is not approved by the court. The
indemnification agreements provide for the Registrant to advance to the
individual any and all expenses (including attorneys' fees) incurred in
investigating or defending any such action,
<PAGE>
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.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings
The undersigned Registrant hereby undertakes:
(a) 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; 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;
<PAGE>
PROVIDED, HOWEVER, that paragraphs (i) and (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 Exchange Act that are incorporated by
reference in the Registration Statement.
(b) 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.
(c) 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.
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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an 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
in the initial bona fide offering thereof.
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 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>
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
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, State of North Carolina, on this 12th day of
January, 1998.
TRIMERIS, INC.
/s/ M. Ross Johnson
By: ______________________________________
M. Ross Johnson
President, Chief Executive Officer and
Chief Scientific Officer
We, the undersigned officers and directors of Trimeris, Inc., do hereby
severally constitute and appoint M. Ross Johnson and Matthew A. Megaro our true
and lawful attorneys-in-fact and agents with full power of substitution and
resubstitution, for us and in our names, places and steads, in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement, and to file the same, with all exhibits thereto,
and all documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as we
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or their substitutes, may lawfully 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 in the
capacities and on this 12th day of January 1998.
Signature Title
/s/ Jesse I. Treu, Ph.D. Chairman of the Board of Directors
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Jesse I. Treu, Ph.D.
/s/ M. Ross Johnson, Ph.D. President, Chief Executive Officer, Chief
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M. Ross Johnson, Ph.D. Scientific Officer and Director (Principal
Executive Officer)
/s/ Andrew McCreath Director
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Andrew McCreath
/s/ Dani P. Bolognesi, Ph.D. Director
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Dani P. Bolognesi, Ph.D.
/s/ Matthew A. Megaro Chief Operating Officer, Chief Financial
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Matthew A. Megaro Officer, Executive Vice President and
Secretary (Principal Accounting and
Financial Officer)
/s/ Brian H. Dovey Director
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Brian H. Dovey
/s/ Charles A. Sanders, M.D. Director
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Charles A. Sanders, M.D.
<PAGE>
Exhibit Index
Exhibit No. Description
4.1* Third Amended and Restated Certificate of Incorporation of the
Registrant
4.2* Amended and Restated Bylaws of the Registrant
4.3* Specimen Certificate of Common Stock, $0.001 par value, of the
Registrant
4.4* Trimeris, Inc. Amended and Restated Stock Incentive Plan
5.1 Legal opinion of Hutchison & Mason PLLC
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Hutchison & Mason PLLC (Contained in Exhibit 5.1)
24.1 Power of Attorney (Contained on signature page)
* Incorporated herein by reference to the Registrant's Registration Statement on
Form S-1 (File No. 333-31109)
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 852,941
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. Amended and
Restated Stock Incentive 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) upon payment of the
consideration and termination or lapse of any restrictions set forth in any
award agreement under the Plan, and delivery of the certificates evidencing the
shares so acquired, the shares of Common Stock issued 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,
Hutchison & Mason PLLC
/s/ Hutchison & 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 amended and
restated Stock Incentive 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
<PAGE>
