As filed with the Securities and Exchange Commission on July 11, 2014
Registration No. 333-_______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Celator Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 20-2680869 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. employer identification no.) | |
200 PrincetonSouth Corporate Center, Suite 180, Ewing, New Jersey | 08628 | |
| (Address of principal executive offices) | (Zip code) |
Celator Pharmaceuticals, Inc.
2013 Equity Incentive Plan
Scott T. Jackson
Chief Executive Officer
Celator Pharmaceuticals, Inc.
200 PrincetonSouth Corporate Center, Suite 180
Ewing, New Jersey 08628
(Name and address of agent for service)
(609) 243-0123
(Telephone number, including area code, of agent for service)
Copy to:
John W. Kauffman, Esq.
Duane Morris LLP
30 South 17th Street
Philadelphia, PA 19103
(215) 979-1227
CALCULATION OF REGISTRATION FEE
Title of securities to be registered |
Amount to be registered (1) | Proposed maximum offering price per share(2) | Proposed maximum aggregate offering price(2) |
Amount of registration fee |
Common stock, $0.001 par value |
3,501,970 shares |
(2) |
$10,695,748.02 |
$1,377.62
|
| (1) | This registration statement shall also cover any additional shares of Celator Pharmaceuticals, Inc. common stock that become issuable under such plan being registered pursuant to this registration statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of outstanding shares of Celator Pharmaceuticals, Inc. common stock.
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| (2) | Pursuant to Rule 457(h), the maximum aggregate offering price was calculated by adding (i) $7,269,699 with respect to 2,287,059 shares issuable upon exercise of outstanding stock options, at the per share exercise price of those options, and (ii) $3,426,049.02 with respect to the remaining 1,214,911 shares issuable under the plan, at the price of $2.82 per share based upon the average of the high and low sales prices of Celator Pharmaceuticals, Inc. common stock on July 7, 2014, which is a date within five business days prior to the filing of this registration statement, as reported on the NASDAQ Capital Market.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents that we have filed with the SEC (File No. 000-54852) are incorporated by reference into this registration statement:
| · | Our annual report on Form 10-K for the fiscal year ended December 31, 2013 filed on March 24, 2014; |
| · | Our quarterly reports on Form 10-Q for the quarters ended March 31, 2014 filed on May 12, 2014; |
| · | Our current reports on Form 8-K filed on May 12, 2014 (three reports in total) and June 13, 2014; except that Items 2.02 and 9.01 contained in one Form 8-K report filed on May 12, 2014 are not incorporated by reference into this registration statement; |
| · | Our proxy statement for our annual meeting of stockholders filed on April 29, 2014; and |
| · | The description of our common stock contained in our registration statement on Form S-1, filed with the SEC on May 31, 2013, and any amendment or report filed for the purpose of updating such description. |
All documents that we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, or the Exchange Act, after the date of this registration statement and until the offering under this registration statement is completed will be deemed to be incorporated by reference into this registration statement and will be a part of this registration statement from the date of the filing of the document. Any statement contained in a document incorporated or deemed to be incorporated by reference into this registration statement will be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this registration statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference into this registration statement conflicts with, negates, modifies or supersedes that statement. Any statement that is modified or superseded will not constitute a part of this registration statement, except as modified or superseded.
| Item 4. | Description of Securities. |
No answer to this item is required because the class of securities to which this registration statement relates is registered under Section 12 of the Exchange Act.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Delaware Law
Section 102 of the General Corporation Law of the State of Delaware permits a corporation to eliminate the personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit.
| II-1 |
Section 145 of the General Corporation Law of the State of Delaware provides that a corporation has the power to indemnify a director, officer, employee, or agent of the corporation, or a person serving at the request of the corporation for another corporation, partnership, joint venture, trust or other enterprise in related capacities against expenses, including attorneys’ fees, judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with an action, suit or proceeding to which he was or is a party or is threatened to be made a party to any threatened, ending or completed action, suit or proceeding by reason of such position, if such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, in any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful, except that, in the case of actions brought by or in the right of the corporation, no indemnification shall be made with respect to any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or other adjudicating court determines that, despite the adjudication of liability but in view of all of the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Third Amended and Restated Certificate of Incorporation
Our certificate of incorporation limits the personal liability of directors for breach of fiduciary duty to the maximum extent permitted by the Delaware General Corporation Law and provides that no director will have personal liability to us or to our stockholders for monetary damages for breach of fiduciary duty or other duty as a director. However, these provisions do not eliminate or limit the liability of any of our directors for:
| · | for any breach of the director’s duty of loyalty to us or our stockholders; |
| · | for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; |
| · | for voting for or assenting to unlawful payments of dividends, stock repurchases or other distributions; or |
| · | for any transaction from which the director derived an improper personal benefit. |
In addition, our certificate of incorporation provides that we will indemnify our directors and officers in each and every situation where, under Section 145 General Corporation Law of the State of Delaware, we are permitted to make such indemnification. We may, in the sole discretion of our board of directors, also indemnify any other person who may be indemnified pursuant to Section 145 to the extent our board of directors deems advisable, as permitted by Section 145.
Our by-laws provide that we will indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnitee”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”), by reason of the fact that such person, or a person for whom he or she is the legal representative, is or was a director or officer of the corporation or, while a director or officer of the corporation, is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnitee. Notwithstanding the preceding sentence, except as otherwise provided in our by-laws, we will be required to indemnify an Indemnitee in connection with a proceeding (or part thereof) commenced by such Indemnitee only if the commencement of such proceeding (or part thereof) by the Indemnitee was authorized by the Board of Directors. We will pay the expenses (including attorneys’ fees) incurred by an Indemnitee in defending any proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking by the Indemnitee to repay all amounts advanced if it should be ultimately determined that the Indemnitee is not entitled to be indemnified.
| II-2 |
Indemnification Agreements
We have entered into indemnification agreements with each of our directors and officers. These indemnification agreements may require us, among other things, to indemnify our directors and officers for some expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of our directors or officers, or any of our subsidiaries or any other company or enterprise to which the person provides services at our request.
We maintain a general liability insurance policy that covers certain liabilities of directors and officers of our corporation arising out of claims based on acts or omissions in their capacities as directors or officers.
Other
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to our directors, officers or controlling persons pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| II-3 |
| Item 8. | Exhibits. |
| Exhibit No. | Description of Exhibit | |
| 5.1 | Opinion of Duane Morris LLP (filed herewith).
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| 23.1 | Consent of Independent Registered Public Accounting Firm (filed herewith).
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| 23.2 | Consent of Independent Registered Chartered Accountants (filed herewith).
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| 23.3 | Consent of Duane Morris LLP (included in Exhibit 5.1).
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| Item 9. | Undertakings. |
We hereby undertake:
(a) to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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;
(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 therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof; and
(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.
We hereby further undertake that, for purposes of determining any liability under the Securities Act, each filing of our 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
We hereby further undertake that, insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons, we have been advised that in the opinion of the 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 us of expenses incurred or paid by any of our directors, officers or controlling persons 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, we will, unless in the opinion of our counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by us is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
| II-4 |
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 Ewing, New Jersey, on July 11, 2014.
| CELATOR PHARMACEUTICALS, INC. | ||
| By: | /s/ Scott T. Jackson | |
| Scott T. Jackson | ||
| Chief Executive Officer | ||
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/ Scott T. Jackson | Chief Executive Officer and Director (principal executive officer) | July 11, 2014 | ||
| Scott T. Jackson | ||||
| /s/ Fred M. Powell | Vice President and Chief Financial Officer (principal financial and accounting officer) | July 11, 2014 | ||
| Fred M. Powell | ||||
| /s/ Joseph A Mollica | Chairman | July 11, 2014 | ||
| Joseph A Mollica | ||||
| /s/ Michael R. Dougherty | Director | July 11, 2014 | ||
| Michael R. Dougherty | ||||
| /s/ Richard S. Kollender | Director | July 11, 2014 | ||
| Richard S. Kollender | ||||
| /s/ Joseph M. Lobacki | Director | July 11, 2014 | ||
| Joseph M. Lobacki | ||||
| /s/ Scott Morenstein | Director | July 11, 2014 | ||
| Scott Morenstein | ||||
| /s/ Nicole Vitullo | Director | July 11, 2014 | ||
| Nicole Vitullo |
| II-5 |
EXHIBIT INDEX
| Exhibit No. | Description of Exhibit | |
| 5.1 | Opinion of Duane Morris LLP (filed herewith).
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| 23.1 | Consent of Independent Registered Public Accounting Firm (filed herewith).
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| 23.2 | Consent of Independent Registered Chartered Accountants (filed herewith).
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| 23.3 | Consent of Duane Morris LLP (included in Exhibit 5.1).
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