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As filed with the Securities and Exchange Commission on June 8, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
INTERLEUKIN GENETICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 94-3123681
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
135 BEAVER STREET
WALTHAM, MASSACHUSETTS 02452
(Address of Principal Executive Offices) (Zip Code)
INTERLEUKIN GENETICS, INC. 2000 EMPLOYEE STOCK COMPENSATION PLAN
(Full title of the Plan)
KENNETH S. KORNMAN
PRESIDENT
INTERLEUKIN GENETICS, INC.
135 BEAVER STREET
BOSTON, MASSACHUSETTS 02452
(Name and address of agent for service)
(781) 398-0700
(Telephone number, including area code, of agent for service)
With Copy to:
FULBRIGHT & JAWORSKI L.L.P.
300 CONVENT, SUITE 2200
SAN ANTONIO, TEXAS 78205
(210) 224-5575
ATTENTION: DARYL L. LANSDALE, JR.
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PRICE PER UNIT(1) PRICE(1) REGISTRATION FEE
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Common Stock,
$.001 par value 2,000,000 shares $2.40 $4,800,000 $1,200
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(1) Pursuant to Rule 457(c), the maximum offering price per security and
maximum aggregate offering price of the Common Stock have been calculated
on the basis of the average of the high and low sale prices of the Common
Stock as reported in the NASDAQ SmallCap Market System on June 6, 2001.
(2) Pursuant to Rule 416(a), this Registration Statement shall also cover any
additional shares of Common Stock which become issuable by reason of any
stock dividend, stock split, recapitalization or other similar transactions
effected without the receipt of consideration which results in an increase
in the number of the outstanding shares of Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
1. The Annual Report on Form 10-K of Interleukin Genetics, Inc., a Delaware
corporation (the "Registrant" or the "Company"), for the year ended December 31,
2000 filed with the Securities and Exchange Commission (the "Commission") on
March 26, 2001;
2. The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001, filed with the Commission on May 10, 2001;
3. The Registrant's Current Reports on Form 8-K filed with the Commission
on March 7, 2001 and May 31, 2001; and
4. The description of the Registrant's Common Stock set forth in Item 1 of
the Registrant's Registration Statement on Form 8-A filed with the Commission on
December 15, 1997.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the
filing hereof and 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 in this Registration Statement and to be a part hereof from the date
of filing such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any subsequently filed document which also is
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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL") empowers
the Registrant to, and the Bylaws of the Registrant provide that it shall,
indemnify to the fullest extent authorized by the DGCL each director or officer
of the Registrant or a subsidiary of the Registrant who was or is made a party
or is threatened to be made a party to or is involved in any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative, by reason of the fact that he or she, or a person of whom he
or she is the legal representative, is or was a director or officer of the
Registrant or a subsidiary of the Registrant, or is or was serving at the
request of the Registrant as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, against all expenses,
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection therewith if 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, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful; except that, in the case
of an action or suit by or in the right of the Registrant, no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Registrant unless and only to the
extent that the Court of Chancery or the court in which such action or suit was
brought shall determine that such person is fairly and reasonably entitled to
indemnity for proper expenses.
Article Six of the Registrant's Certificate of Incorporation provides, in
part, that a director of the registrant shall not be personally liable to the
Registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director, except for liability (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 knowing violation of law,
(iii) for illegal dividends and stock repurchases or (iv) for any transaction
for which the director derived an improper personal benefit.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling the Registrant
pursuant to the foregoing provisions, the Registrant has been informed that in
the opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Section 145 of the Delaware General Corporation Law also empowers the
Registrant to purchase and maintain insurance on behalf of any person who is or
was an officer or director of the Registrant against liability asserted against
or incurred by him in any such capacity, whether or not the Registrant would
have the power to indemnify such officer or director against such liability
under the provisions of Section 145. The Registrant has purchased and maintains
a directors' and officers' liability policy for such purposes.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
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ITEM 8. EXHIBITS
4.1 - Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 2000)
4.2 - Bylaws of the Registrant (incorporated herein by reference
to Exhibit 3.2 to the Registrant's Quarterly Report on Form
10-Q for the quarterly period ended June 30, 2000)
4.3 - Form of Common Stock certificate (incorporated herein by
reference to Exhibit 4.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended June 30,
2000)
*5.1 - Opinion of Fulbright & Jaworski L.L.P. as to the legality of
the securities being registered
*23.1 - Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1)
*23.2 - Consent of Arthur Andersen LLP
*24.1 - Powers of Attorney from the members of the Board of Directors
of the Registrant (contained on page 8 hereof)
99.1 - Interleukin Genetics, Inc. 2000 Employee Stock Compensation
Plan (incorporated herein by reference to Exhibit 10.3 to
the Registrant's Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2000)
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* filed herewith
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ITEM 9. UNDERTAKINGS
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, as amended (the "Securities Act");
(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 hereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in this
Registration Statement; and
(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 (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 this
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 herein, 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.
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 that is incorporated by reference in this 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.
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
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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.
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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 Waltham, Commonwealth of Massachusetts, on June 8,
2001.
INTERLEUKIN GENETICS, INC.
By: /s/ Kenneth S. Kornman
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Kenneth S. Kornman,
President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Kenneth S. Kornman and Philip R. Reilly,
or either 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
and all exhibits thereto, and all documents in connection therewith, with the
Securities and Exchange Commission, granting said attorney-in-fact and agent,
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 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 either of them, or
their or his substitute or 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 the dates indicated.
SIGNATURE TITLE DATE
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/s/ Philip R. Reilly Chairman of the Board and June 8, 2001
------------------------- Chief Executive Officer
Philip R. Reilly (Principal Executive Officer)
/s/ Kenneth S. Kornman President, Chief Scientific Officer June 8, 2001
------------------------- and a Director
Kenneth S. Kornman
/s/ Fenel Eloi Chief Operating Officer, June 8, 2001
------------------------- Chief Financial Officer,
Fenel Eloi Secretary and Treasurer
(Principal Financial and
Accounting Officer)
/s/ Thomas A. Moore Director June 8, 2001
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Thomas A. Moore
/s/ Edward M. Blair, Jr. Director June 8, 2001
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Edward M. Blair, Jr.
Director
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Gary L. Crocker
/s/ John Garofalo Director June 8, 2001
-------------------------
John Garofalo
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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4.1 - Certificate of Incorporation of the Registrant (incorporated
herein by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarterly period ended June 30, 2000)
4.2 - Bylaws of the Registrant (incorporated herein by reference to
Exhibit 3.2 to the Registrant's Quarterly Report on Form 10-Q for
the quarterly period ended June 30, 2000)
4.3 - Form of Common Stock certificate (incorporated herein by
reference to Exhibit 4.1 to the Registrant's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2000)
*5.1 - Opinion of Fulbright & Jaworski L.L.P. as to the legality of the
securities being registered
*23.1 - Consent of Fulbright & Jaworski L.L.P. (included in Exhibit 5.1)
*23.2 - Consent of Arthur Andersen LLP
*24.1 - Powers of Attorney from the members of the Board of Directors of
the Registrant (contained on page 8 hereof)
99.1 - Interleukin Genetics, Inc. 2000 Employee Stock Compensation Plan
(incorporated herein by reference to Exhibit 10.3 to the
Registrant's Quarterly Report on Form 10-Q for the quarterly
period ended June 30, 2000)
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* filed herewith
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