As filed with the Securities and Exchange Commission on May 23, 2008

Registration No. 333-             

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

Infinity Pharmaceuticals, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

 

 

Delaware   33-0655706

(State or Other Jurisdiction

of Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

 

780 Memorial Drive

Cambridge, Massachusetts

  02139
(Address of Principal Executive Offices)   (Zip Code)

 

 

Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan

(Full Title of the Plan)

 

 

Gerald E. Quirk, Esq.

Vice President and General Counsel

Infinity Pharmaceuticals, Inc.

780 Memorial Drive

Cambridge, Massachusetts 02139

(Name and Address of Agent For Service)

(617) 453-1000

(Telephone Number, Including Area Code, of Agent For Service)

 

 

with a copy to:

Steven D. Singer, Esq.

Wilmer Cutler Pickering Hale and Dorr LLP

60 State Street

Boston, MA 02109

(617) 526-6000

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b2 of the Exchange Act.

Large accelerated filer   ¨             Accelerated filer   x

Non-accelerated filer   ¨               Smaller reporting company   ¨

 

 

CALCULATION OF REGISTRATION FEE

 
Title of Class of Securities to be Registered   Amount to be
Registered 		  Proposed Maximum
Offering Price Per
Share 		  Proposed Maximum
Aggregate Offering
Price 		  Amount of
Registration Fee

Common Stock, $0.001 par value per share (including associated Series A Junior Preferred Stock Purchase Rights)

  788,430 shares(1)   $7.80(2)   $6,149,754(2)   $241.69
 
 
(1) In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.
(2) The fee was estimated in accordance with Rule 457(c) and (h) under the Securities Act based on the average of the high and low prices of the shares as reported on The Nasdaq Global Market on May 21, 2008.

 

 

 

STATEMENT OF INCORPORATION BY REFERENCE

This registration statement on Form S-8 is being filed to register an additional 788,430 shares of Common Stock, $0.001 par value per share, of Infinity Pharmaceuticals, Inc. (the “Registrant”) issuable under the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended (the “Plan”). Pursuant to General Instruction E to Form S-8, except for Item 5 “Interests of Named Experts and Counsel” and Item 8 “Exhibits,” this registration statement incorporates by reference the contents of (w) the registration statement on Form S-8, File No. 333-145306, filed by the Registrant on August 10, 2007 relating to the Plan, (x) the registration statement on Form S-8, File No. 333-138248, filed by the Registrant on October 27, 2006 relating to the Plan and the Infinity Pharmaceuticals, Inc. Pre-Merger Stock Incentive Plan, as amended, (y) the registration statement on Form S-8, File No. 333-97173, filed by the Registrant on July 26, 2002 relating to the Plan and the Registrant’s 2000 Employee Stock Purchase Plan, and (z) the registration statement on Form S-8, File No. 333-44850, filed by the Registrant on August 30, 2000 relating to the Plan and the Registrant’s 2000 Employee Stock Purchase Plan.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 5. Interests of Named Experts and Counsel.

Wilmer Cutler Pickering Hale and Dorr LLP (“WilmerHale”) has opined as to the legality of the securities being offered by this registration statement. A partnership in which interests are owned directly and/or beneficially by partners and employees of WilmerHale owns 9,455 shares of the Registrant’s Common Stock.

 

Item 8. Exhibits.

The Index to Exhibits immediately preceding the exhibits is incorporated herein by reference.

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 Cambridge, Massachusetts, on this 23rd day of May, 2008.

 

INFINITY PHARMACEUTICALS, INC.
By:  

/s/ Steven H. Holtzman

  Steven H. Holtzman
  President and Chief Executive Officer

POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of Infinity Pharmaceuticals, Inc., hereby severally constitute and appoint Steven H. Holtzman, Adelene Q. Perkins and Gerald E. Quirk, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Infinity Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming 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.

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.

 

Signature

 

Title

  

Date

/s/ Steven H. Holtzman

 

Chair, President and Chief Executive Officer

(principal executive officer)

   May 23, 2008
Steven H. Holtzman     

/s/ Adelene Q. Perkins

 

Executive Vice President and Chief Business Officer

(principal financial officer)

   May 23, 2008
Adelene Q. Perkins     

/s/ Christopher M. Lindblom

 

Controller and Assistant Treasurer

(principal accounting officer)

   May 23, 2008
Christopher M. Lindblom     

/s/ Martin Babler

  Director    May 23, 2008
Martin Babler     

/s/ Anthony B. Evnin

  Director    May 23, 2008
Anthony B. Evnin     

/s/ Harry F. Hixson, Jr.

  Director    May 23, 2008
Harry F. Hixson, Jr.     

/s/ Eric S. Lander

  Director    May 23, 2008
Eric S. Lander     

/s/ Patrick Lee

  Director    May 23, 2008
Patrick Lee     

/s/ Arnold J. Levine

  Director    May 23, 2008
Arnold J. Levine     

/s/ Franklin Moss

  Director    May 23, 2008
Franklin Moss     

/s/ Vicki L. Sato

  Director    May 23, 2008
Vicki L. Sato     

/s/ Ian F. Smith

  Director    May 23, 2008
Ian F. Smith     

/s/ James B. Tananbaum

  Director    May 23, 2008
James B. Tananbaum     

/s/ Michael C. Venuti

  Director    May 23, 2008
Michael C. Venuti     

INDEX TO EXHIBITS

 

Number

  

Description

  4.1    Restated Certificate of Incorporation of the Registrant dated May 30, 2007. Previously filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (File No. 000-31141) and incorporated herein by reference.
  4.2    Bylaws of the Registrant. Previously filed as Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 filed on June 23, 2000 (File No. 333-36638) and incorporated herein by reference.
  4.3    Amendment to Bylaws of the Registrant adopted on September 12, 2006. Previously filed as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on September 18, 2006 (File No. 000-31141) and incorporated herein by reference.
  4.4    Second Amendment to Bylaws of the Registrant adopted on May 30, 2007. Previously filed as Exhibit 3.4 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2007 (File No. 000-31141) and incorporated herein by reference.
  4.5    Rights Agreement between the Registrant and American Stock Transfer & Trust Company dated February 13, 2003, which includes the form of Certificate of Designation for the Series A junior participating preferred stock as Exhibit A, the form of Rights Certificate as Exhibit B and the Summary of Rights to Purchase Series A junior participating preferred stock as Exhibit C. Previously filed as Exhibit 4.2 to the Registrant’s Current Report on Form 8-K filed on February 24, 2003 (File No. 000-31141) and incorporated herein by reference.
  4.6    First Amendment to the Rights Agreement between the Registrant and American Stock Transfer & Trust Company dated April 11, 2006. Previously filed as Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on April 12, 2006 (File No. 000-31141) and incorporated herein by reference.
  5.1    Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant. Filed herewith.
23.1    Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1). Filed herewith.
23.2    Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm to the Registrant. Filed herewith.
24.1    Power of attorney (included on the signature pages of this registration statement).
99.1    Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended. Previously filed as Exhibit 10.59 to the Registrant’s Registration Statement on Form S-1, as amended, filed on July 21, 2000 (File No. 333-36638) and incorporated herein by reference.

99.2    Amendment No. 1 to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended; Amendment No. 2 to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended; Amendment No. 3 to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended. Previously filed as Exhibit 10.32 to the Registrant’s Current Report on Form 8-K on September 18, 2006 (File No. 000-31141) and incorporated herein by reference.
99.3    Amendment No. 4 to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended. Previously filed as Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q on August 9, 2007 (File No. 000-31141) and incorporated herein by reference.
99.4    Amendment No. 5 to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended. Filed herewith.

Exhibit 5.1

 

   LOGO
May 23, 2008   

Infinity Pharmaceuticals, Inc.

780 Memorial Drive

Cambridge, MA 02139

 

Re: Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan

Ladies and Gentlemen:

We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 788,430 shares (the “Shares”) of common stock, $0.001 par value per share (the “Common Stock”), of Infinity Pharmaceuticals, Inc., a Delaware corporation (the “Company”), issuable under the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan (formerly named the Discovery Partners International, Inc. 2000 Stock Incentive Plan), as amended (the “Plan”).

We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material 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 certified, photostatic or other copies, the authenticity of the originals of any 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 in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.

We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts, the statutes codified as 8 Del. C. §§101-398 and known as the General Corporation Law of the State of Delaware and the federal laws of the United States of America.

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.

LOGO

 

LOGO

Infinity Pharmaceuticals, Inc.

May 23, 2008

Page 2

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 matters.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

In rendering this opinion, we bring to your attention the fact that a partnership in which interests are owned directly and/or beneficially by partners and employees of Wilmer Cutler Pickering Hale and Dorr LLP owns 9,455 shares of Common Stock of the Company.

 

Very truly yours,
WILMER CUTLER PICKERING HALE AND DORR LLP
By:  

/s/ Steven D. Singer

  Steven D. Singer, a Partner

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan of our reports dated March 11, 2008, with respect to the consolidated financial statements of Infinity Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2007 and the effectiveness of internal control over financial reporting of Infinity Pharmaceuticals, Inc., filed with the Securities and Exchange Commission.

 

/s/ Ernst & Young LLP

Boston, Massachusetts

May 22, 2008

Exhibit 99.4

AMENDMENT NO. 5 TO

INFINITY PHARMACEUTICALS, INC.

2000 STOCK INCENTIVE PLAN

The Infinity Pharmaceuticals, Inc. 2000 Stock Incentive Plan, as amended, be and hereby is amended to delete Article Five, Section I.A. in its entirety and to insert the following in lieu thereof as a new Article Five, Section I.A.:

“Notwithstanding anything to the contrary contained herein:

(1) Each non-employee director shall receive on the date of his or her initial election to the Board, a Non-Statutory Option to purchase 9,375 shares of Common Stock (the “Initial Option”). Shares of Common Stock subject to the Initial Option will become exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the holder of the Initial Option continues to serve as a director.

(2) Each non-employee director shall, on the date of the 2009 Annual Stockholders Meeting and on the date of each Annual Stockholders Meeting thereafter, receive a Non-Statutory Option to purchase 5,625 shares of Common Stock (an “Annual Option”). Shares of Common Stock subject to the Annual Option will be exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the holder of the Annual Option continues to serve as a director.

(3) The non-employee director who serves as the lead outside director of the Board shall receive an additional Non-Statutory Option to purchase 9,375 shares of Common Stock upon the date of commencement of service in such position and on the date of each Annual Stockholders Meeting thereafter. Shares of Common Stock subject to each such option will be exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the holder of such option continues to serve as the lead outside director.

(4) The non-employee director who serves as the chair of the audit committee of the Board and the non-employee director who serves as the chair of the research and development committee of the Board shall each receive an additional Non-Statutory Option to purchase 3,750 shares of Common Stock upon the date of commencement of service in such position and on the date of each Annual Stockholders Meeting thereafter. Shares of Common Stock subject to such options will be exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the holder of the option continues to serve as the chair of the audit committee or the chair of the research and development committee, as applicable.

(5) The non-employee director who serves as the chair of the nominating and corporate governance committee of the Board, if such person is not also the lead outside director of the Board, and the non-employee director who serves as the chair of the compensation committee of the Board shall each receive an additional Non-Statutory Option to purchase 1,875 shares of Common Stock upon the date of commencement of service in such position and on the date of each Annual Stockholders Meeting thereafter. Shares of Common Stock subject to such options will be exercisable in equal quarterly installments beginning at the end of the first quarter after the date of grant, provided that the holder of the option continues to serve as the chair of the nominating and corporate governance committee or the chair of the compensation committee, as applicable.”