<PAGE>
As filed with the Securities and Exchange Commission on May 5, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VALENTIS, INC.
(Formerly known as Megabios Corp.)
(Exact name of registrant as specified in its charter)
DELAWARE 94-3156660
(State of Incorporation) (I.R.S. Employer
Identification No.)
--------------------
VALENTIS, INC.
863A MITTEN ROAD
BURLINGAME, CA 94010
(650) 697-1900
(Address of principal executive offices)
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GENEMEDICINE, INC.
1993 STOCK OPTION PLAN, AS AMENDED
(Full title of the plans)
BENJAMIN F. MCGRAW III
PRESIDENT AND CHIEF EXECUTIVE OFFICER
VALENTIS, INC.
863A MITTEN ROAD
BURLINGAME, CA 94010
(650) 697-1900
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
--------------------
Copies to:
PATRICK A. POHLEN, ESQ.
COOLEY GODWARD LLP
FIVE PALO ALTO SQUARE
3000 EL CAMINO REAL
PALO ALTO, CA 94306-2155
(650) 843-5000
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered Price per Share (1) Offering Price (1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 1,388,777 shares $8.52 $11,832,380 $3,289.41
$.001 per share
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee. The offering price is based upon the exercise prices for
shares previously granted under the GeneMedicine, Inc. 1993 Stock Option
Plan, as amended, pursuant to Rule 457(h) under the Securities Act of 1933,
as amended (the "Securities Act").
<PAGE>
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
The stock options to be registered hereunder have been assumed by Valentis,
Inc. (the "Registrant") pursuant to an Agreement and Plan of Merger and
Reorganization, as amended, dated October 24, 1998, among the Registrant,
Montana Acquisition Sub, Inc., a Delaware corporation, and GeneMedicine,
Inc., a Delaware corporation. These options were originally granted to
employees, consultants and directors of GeneMedicine, Inc. under the
GeneMedicine, Inc. 1993 Stock Option Plan, as amended.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Valentis, Inc. (the "Registrant") with
the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a) The Registrant's latest annual report on Form 10-K for the year
ended June 30, 1998 (File No. 0-22987), as amended.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998 (File No. 0-22987), including all material
incorporated by reference therein.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended December 31, 1998 (File No. 0-22987), including all material
incorporated by reference therein.
(d) The Registrant's Current Report on Form 8-K (File No. 0-22987), as
amended, originally filed October 28, 1998.
(e) The Registrant's Current Report on Form 8-K (File No. 0-22987),
filed November 25, 1998.
(f) The Registrant's Current Report on Form 8-K (File No. 0-22987),
filed February 10, 1999.
(g) The Registrant's Current Report on Form 8-K (File No. 0-22987),
filed March 24, 1999.
(h) The Registrant's Current Report on Form 8-K (File No. 0-22987),
filed April 2, 1999.
(i) The description of the Registrant's Common Stock which is contained
in the Registration Statement on Form 8-A (File No. 0-22987), filed August
15, 1997, under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), 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 herein and to be a part of this registration statement from the
date of the filing of such reports and documents.
All reports and other 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 have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference herein and to be a
part of this registration statement from the date of the filing of such
reports and documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the
Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under
the Securities Act. The Registrant's Bylaws also provide that the Registrant
will indemnify its directors and officers and may indemnify its employees and
other agents to the fullest extent not prohibited by Delaware law.
The Registrant's Amended and Restated Certificate of Incorporation
provides for the elimination of liability for monetary damages for breach of
the directors' fiduciary duty of care to the Registrant and its stockholders.
These provisions do not eliminate the directors' duty of care and, in
appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the
<PAGE>
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends
or approval of stock repurchases or redemptions that are unlawful under
Delaware law. The provision does not affect a director's responsibilities
under any other laws, such as the federal securities laws.
The Registrant has entered into agreements with its directors and
executive officers that require the Registrant to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any
such person may be made a party by reason of the fact that such person is or
was a director or executive officer of the Registrant or any of its
affiliated enterprises. No indemnity will be provided, however, to any
director or executive officer on account of conduct that is knowingly
fraudulent or deliberately dishonest or constitutes willful misconduct. No
indemnification will be available if such indemnification is unlawful, or in
respect of any accounting of profits made from the purchase or sale of
securities of the Registrant in violation of Section 16(b) of the Exchange
Act. The indemnification agreements also set forth certain procedures that
will apply in the event of a claim for indemnification thereunder.
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
<S> <C>
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* GeneMedicine, Inc. 1993 Stock Option Plan, as amended.
* Document incorporated by reference from GeneMedicine, Inc.'s
Quarterly Report on Form 10-Q (File No. 0-24572) for the period
ended March 31, 1997.
</TABLE>
UNDERTAKINGS
1. 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. 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 end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) (Section 230.424(b) of this chapter) if, in the aggregate,
the changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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)(i) and (a)(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 issuer
pursuant to section 13 or section 15(d) of the Exchange Act that are
incorporated by reference herein.
(b) 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 herein, 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.
<PAGE>
2. 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 herein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
3. 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 Securities and Exchange
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.
<PAGE>
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 Burlingame, State of California, on
May 5, 1999.
VALENTIS, INC.
By: /s/ Benjamin F. McGraw III
-----------------------------------------
BENJAMIN F. MCGRAW III
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND
PRESIDENT
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Benjamin F. McGraw III and Bennet L.
Weintraub, and each or any one of them, his true and lawful attorney-in-fact
and agent, with full power of substitution and resubstitution, for him and in
his name, place and stead, 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 other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or
their or his substitutes or substitute, 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Benjamin F. McGraw III Chairman, Chief Executive May 5, 1999
- --------------------------------------- Officer and President (Principal
BENJAMIN F. MCGRAW III, PHARM.D. Executive Officer)
/s/ Bennet L. Weintraub Vice President, Finance, and May 5, 1999
- --------------------------------------- Chief Financial Officer
BENNET L. WEINTRAUB (Principal Financial and
Accounting Officer)
/s/ Frank J. Caufield Director May 3, 1999
- ---------------------------------------
FRANK J. CAUFIELD
/s/ Patrick G. Enright Director May 1, 1999
- ---------------------------------------
PATRICK G. ENRIGHT
</TABLE>
#
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Russell C. Hirsch Director May 1, 1999
- ---------------------------------------
RUSSELL C. HIRSCH, M.D., PH.D.
/s/ Raju Kucherlapati Director May 3, 1999
- ---------------------------------------
RAJU KUCHERLAPATI, PH.D.
/s/ Stanley T. Crooke Director May 1, 1999
- ---------------------------------------
STANLEY T. CROOKE, M.D., PH.D.
/s/ Bert W. O'Malley Director May 1, 1999
- ---------------------------------------
BERT W. O'MALLEY, M.D.
/s/ Arthur M. Pappas Director May 1, 1999
- ---------------------------------------
ARTHUR M. PAPPAS
</TABLE>
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature pages.
99.1* GeneMedicine, Inc. 1993 Stock Option Plan, as amended.
* Document incorporated by reference from GeneMedicine, Inc.'s
Quarterly Report on Form 10-Q (File No. 0-24572) for the period
ended March 31, 1997.
<PAGE>
EXHIBIT 5.1
Patrick A. Pohlen, Esq.
DIRECT: (650) 843-5004
INTERNET: [email protected]
May 5, 1999
VALENTIS, INC.
863A Mitten Road
Burlingame, CA 94010
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Valentis, Inc. (the "Company") of a Registration Statement
on Form S-8 (the "Registration Statement") with the Securities and Exchange
Commission covering the offering of up to 1,388,777 shares of the Company's
Common Stock, $.001 par value (the "Shares"), issuable upon exercise of
options originally granted by GeneMedicine, Inc. under the GeneMedicine, Inc.
1993 Stock Option Plan, as amended (the "Plan").
In connection with this opinion, we have examined the Registration Statement
and related Prospectus, your Certificate of Incorporation and Bylaws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as we deem necessary as a basis for this opinion. We have
assumed the genuineness and authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies thereof, and the due execution and delivery of all documents where due
execution and delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Plan, the
Registration Statement and related Prospectus, will be validly issued, fully
paid, and nonassessable (except as to shares issued pursuant to certain
deferred payment arrangements, which will be fully paid and nonassessable
when such deferred payments are made in full).
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ Patrick A. Pohlen
------------------------------------
Patrick A. Pohlen
<PAGE>
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG, LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 of Valentis, Inc. (formerly Megabios Corp.) pertaining to options
assumed by Valentis, Inc. originally granted under the GeneMedicine, Inc.
1993 Stock Option Plan, as amended, of our report dated July 31, 1998, with
respect to the financial statements of Valentis, Inc. included in its Annual
Report (Form 10-K) for the year ended June 30, 1998, filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Palo Alto, California
May 4, 1999
