As filed with the Securities and Exchange Commission on November 8, 2000
Registration No. 333-5530
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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GENETIC VECTORS, INC.
(Exact Name of Registrant as Specified in Its Charter)
FLORIDA
(State or Other Jurisdiction of Incorporation or Organization)
65-0324710
(I.R.S. Employer Identification No.)
5201 N.W. 77TH AVENUE, SUITE 100
MIAMI, FLORIDA 33166
(Address of Principal Executive Offices)
GENETIC VECTORS, INC. 1996 INCENTIVE PLAN
JAMES A. JOYCE CONSULTING AGREEMENT
(Full Title of the Plan)
MEAD M. MCCABE, JR.
5201 N.W. 77TH AVENUE, SUITE 100
MIAMI, FLORIDA 33166
(Name and Address of Agent For Service)
(305) 716-0000
(Telephone Number, Including Area Code, of Agent for Service)
Copy to:
Clayton E. Parker, Esq.
Kirkpatrick & Lockhart LLP
201 South Biscayne Boulevard, 20th Floor
Miami, Florida 33131
PART I
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INFORMATION REQUIRED IN THIS
SECTION 10(A) PROSPECTUS
The documents containing the information specified in Part I of Form
S-8 (plan information and registrant information) will be sent or given to
employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as
amended (the "Act"). Such documents need not be filed with the Securities and
Exchange Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424. These documents,
which include the statement of availability required by Item 2 of Form S-8, and
the documents incorporated by reference in this Registration Statement pursuant
to Item 3 of Form S-8 (Part II hereof), taken together, constitute a prospectus
that meets the requirements of Section 10(a) of the Act.
PART II
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INFORMATION REQUIRED IN THIS
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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The following documents have been previously filed by Genetic Vectors,
Inc. (the "Company") with the Securities and Exchange Commission and are hereby
incorporated by reference into this Registration Statement as of their
respective dates:
(a) The Company's Annual Report on Form 10-KSB for the fiscal years
ended December 31, 1999 and 1998.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end
of the fiscal year covered by the registrant document referred to in (a) above.
(c) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-A as filed with the Securities and Exchange
Commission on November 15, 1996, as amended, pursuant to the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, after the date of this Registration
Statement, but prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all securities offered by this
Registration Statement have been sold or which deregisters all such securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement. Each document incorporated by reference into this
Registration Statement shall be deemed to be a part of this Registration
Statement from the date of the filing of such document with the Securities and
Exchange Commission until the information contained therein is superseded or
updated by any subsequently filed document that is incorporated by reference
into this Registration Statement or by any document that constitutes part of the
prospectus relating to the Genetic Vectors, Inc. 1996 Incentive Plan or the
James A. Joyce Consulting Agreement that meets the requirements of Section 10(a)
of the Securities Act of 1933, as amended.
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ITEM 4. DESCRIPTION OF SECURITIES.
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Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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Not Applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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The Florida Business Corporation Act ("FBCA") provides that in certain
cases, each officer and director of the Company shall be indemnified by the
Company against certain costs, expenses and liabilities which he or she may
incur in his or her capacity as such. FBCA ss. 607.0850 ("Indemnification of
officers, directors, employees and agents") provides:
(1) A corporation shall have power to indemnify any person who was or
is a party to any proceeding (other than an action by, or in the right of, the
corporation), by reason of the fact that he is or was a director, officer,
employee, or agent of the corporation or is or was serving at the request of the
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise against liability
incurred in connection with such proceeding, including any appeal thereof, 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 corporation and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any proceeding by judgment, order, settlement,
or conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which he reasonably believed to be in, or not opposed to, the best
interests of the corporation or, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
(2) A corporation shall have power to indemnify any person, who was or
is a party to any proceeding by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he is or was a director,
officer, employee, or agent of the corporation or is or was serving at the
request of the corporation as a director, officer, employee, or agent of another
corporation, partnership, joint venture, trust, or other enterprise, against
expenses and amounts paid in settlement not exceeding, in the judgment of the
board of directors, the estimated expense of litigating the proceeding to
conclusion, actually and reasonably incurred in connection with the defense or
settlement of such proceeding, including any appeal thereof. Such
indemnification shall be authorized 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, except that no indemnification shall be made under this
subsection in respect of any claim, issue, or matter as to which such person
shall have been adjudged to be liable unless, and only to the extent that, the
court in which such proceeding was brought, or any other court of competent
jurisdiction, shall determine upon application that, despite the adjudication of
liability but in view of all circumstances of the case, such person is fairly
and reasonably entitled to indemnity for such expenses which such court shall
deem proper.
(3) To the extent that a director, officer, employee, or agent of a
corporation has been successful on the merits or otherwise in defense of any
proceeding referred to in subsection (1) or subsection (2), or in defense of any
claim, issue, or matter therein, he shall be indemnified against expenses
actually and reasonably incurred by him in connection therewith.
(4) Any indemnification under subsection (1) or subsection (2), unless
pursuant to a determination by a court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee, or agent is proper in the circumstances because he
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has met the applicable standard of conduct set forth in subsection (1) or
subsection (2). Such determination shall be made:
(a) By the board of directors by a majority vote of a quorum
consisting of directors who were not parties to such proceeding;
(b) If such a quorum is not obtainable or, even if obtainable, by
majority vote of a committee duly designated by the board of directors (in which
directors who are parties may participate) consisting solely of two or more
directors not at the time parties to the proceeding;
(c) By independent legal counsel;
1. Selected by the board of directors prescribed in paragraph
(a) or the committee prescribed in paragraph (b); or
2. If a quorum of the directors cannot be obtained for
paragraph (a) and the committee cannot be designated under paragraph (b),
selected by majority vote of the full board of directors (in which directors who
are parties may participate); or
(d) By the shareholders by a majority vote of a quorum consisting
of shareholders who were not parties to such proceeding or, if no such quorum is
obtainable, by a majority vote of shareholders who were not parties to such
proceeding.
(5) Evaluation of the reasonableness of expenses and authorization of
indemnification shall be made in the same manner as the determination that
indemnification is permissible. However, if the determination of permissibility
is made by independent legal counsel, persons specified by paragraph (4)(c)
shall evaluate the reasonableness of expenses and may authorize indemnification.
(6) Expenses incurred by an officer or director in defending a civil or
criminal proceeding may be paid by the corporation in advance of the final
disposition of such proceeding upon receipt of an undertaking by or on behalf of
such director or officer to repay such amount if he is ultimately found not to
be entitled to indemnification by the corporation pursuant to this section.
Expenses incurred by other employees and agents may be paid in advance upon such
terms or conditions that the board of directors deems appropriate.
(7) The indemnification and advancement of expenses provided pursuant
to this section are not exclusive, and a corporation may make any other or
further indemnification or advancement of expenses of any of its directors,
officers, employees, or agents, under any bylaw, agreement, vote of shareholders
or disinterested directors, or otherwise, both as to action in his official
capacity and as to action in another capacity while holding such office.
However, indemnification or advancement of expenses shall not be made to or on
behalf of any director, officer, employee, or agent if a judgment or other final
adjudication establishes that his actions, or omissions to act, were material to
the cause of action so adjudicated and constitute:
(a) A violation of the criminal law, unless the director, officer,
employee, or agent had reasonable cause to believe his conduct was lawful or had
no reasonable cause to believe his conduct was unlawful;
(b) A transaction from which the director, officer, employee, or
agent derived an improper personal benefit;
(c) In the case of a director, a circumstance under which the
liability provisions ofss. 607.0834 are applicable; or
(d) Willful misconduct or a conscious disregard for the best
interests of the corporation in a proceeding by or in the right of the
corporation to procure a judgment in its favor or in a proceeding by or in the
right of a shareholder.
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(8) Indemnification and advancement of expenses as provided in this
section shall continue as, unless otherwise provided when authorized or
ratified, to a person who has ceased to be a director, officer, employee, or
agent and shall inure to the benefit of the heirs, executors, and administrators
of such a person, unless otherwise provided when authorized or ratified.
(9) Unless the corporation's articles of incorporation provide
otherwise, notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary determination of the board or of the
shareholders in the specific case, a director, officer, employee, or agent of
the corporation who is or was a party to a proceeding may apply for
indemnification or advancement of expenses, or both, to the court conducting the
proceeding, to the circuit court, or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice that it
considers necessary, may order indemnification and advancement of expenses,
including expenses incurred in seeking court-ordered indemnification or
advancement of expenses, if it determines that
(a) The director, officer, employee, or agent is entitled to
mandatory indemnification under subsection (3), in which case the court shall
also order the corporation to pay the director reasonable expenses incurred in
obtaining court-ordered indemnification or advancement of expenses;
(b) The director, officer, employee, or agent is entitled to
indemnification or advancement of expenses, or both, by virtue of the exercise
by the corporation of its power pursuant to subsection (7); or
(c) The director, officer, employee, or agent is fairly and
reasonably entitled to indemnification or advancement of expenses, or both, in
view of all the relevant circumstances, regardless of whether such person met
the standard of conduct set forth in subsection (1), subsection (2), or
subsection (7).
(10) For purposes of this section, the term "corporation" includes, in
addition to the resulting corporation, any constituent corporation (including
any constituent of a constituent) absorbed in a consolidation or merger, so that
any person who is or was a director, officer, employee, or agent of a
constituent corporation, or is or was serving at the request of a constituent
corporation as a director, officer, employee, or agent of another corporation,
partnership, joint venture, trust, or other enterprise, is in the same position
under this section with respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if its separate
existence had continued.
(11) For purposes of this section;
(a) The term "other enterprises" includes employee benefit plans;
(b) The term "expenses" includes counsel fees, including those for
appeal;
(c) The term "liability" includes obligations to pay a judgment,
settlement, penalty, fine (including an excise tax assessed with respect to any
employee benefit plan), and expenses actually and reasonably incurred with
respect to a proceeding;
(d) The term "proceeding" includes any threatened, pending, or
completed action, suit, or other type of proceeding, whether civil, criminal,
administrative, or investigative and whether formal or informal;
(e) The term "agent" includes a volunteer;
(f) The term "serving at the request of the corporation" includes
any service as a director, officer, employee, or agent of the corporation that
imposes duties on such persons, including duties relating to an employee benefit
plan and its participants or benefices; and
(g) The term "not opposed to the best interest of the corporation"
describes the actions of a person who acts in good faith and in a manner he
reasonably believes to be in the best interests of the participants and
beneficiaries of an employee benefit plan.
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(12) A corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee, or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee, or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him
and incurred by him in any such capacity or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liability under the provisions of this section.
The Company maintains an insurance policy that provides protection,
within the maximum liability limits of the policy and subject to a deductible
amount for each claim, to the Company under its indemnification obligations and
to the directors and officers of the Company with respect to certain matters
that are not covered by the Company's indemnification obligations.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
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Not applicable.
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ITEM 8. EXHIBITS.
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EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
4.1 Genetic Vectors, Inc. Provided herewith
1996 Incentive Plan
4.2 Consulting Agreement, Provided herewith
dated June 1996, by and
between the Company and
James A. Joyce
5.1 Opinion of Kirkpatrick Previously filed
& Lockhart LLP with Form S-8 on
re: legality May 28, 1998
23.1 Consent of Kirkpatrick Provided herewith
& Lockhart LLP
23.2 Consent of BDO Seidman, LLP Provided herewith
24.1 Power of Attorney Previously filed
with Form S-8 on
May 28, 1998
ITEM 9. UNDERTAKINGS.
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(a) The undersigned registrant will:
(1) File, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement to:
(i) Include any prospectus required by Section 10(a)(3) of the
Act;
(ii) 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) 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) Include any additional or changed 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)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form
S-8, and 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 Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
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(2) For purposes of determining any liability under the Securities Act,
treat each post-effective amendment as 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.
(3) File a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering.
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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 Miami, State of Florida on this 8th day of
November, 2000.
GENETIC VECTORS, INC.
By: /s/ Mead M. McCabe, Jr.
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Printed Name: Mead M. McCabe, Jr.
Title: 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 indicated, which together constitute a majority of the board of
directors of the Company.
Date: November 8, 2000 By: /s/ Mead M. McCabe, Sr.
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Printed Name: Mead M. McCabe, Sr., Ph.D.
Title: Chairman of the Board of Directors
Date: November 8, 2000 By: /s/ Mead M. McCabe, Jr.
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Printed Name: Mead M. McCabe, Jr.
Title: Chief Executive Officer, Secretary,
Chief Financial Officer
and Director(Principal Financial
and Accounting Officer)
Date: November 8, 2000 By: /s/ Jack Fell, Ph.D.
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Printed Name: Jack Fell, Ph.D.
Title: Director
Date: November 8, 2000 By: /s/ Mark E. Burroughs
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Printed Name: Mark E. Burroughs
Title: Director
Date: November 8, 2000 By: /s/ Michael C. Foley
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Printed Name: Michael C. Foley
Title: Director
Date: November 8, 2000 By: /s/ Eric Wilkinson
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Printed Name: Eric Wilkinson
Title: Director
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EXHIBIT LIST
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EXHIBIT NO. DESCRIPTION LOCATION
----------- ----------- --------
4.1 Genetic Vectors, Inc. Provided herewith
1996 Incentive Plan
4.2 Consulting Agreement, Provided herewith
dated June 1996, by and
between the Company and
James A. Joyce
5.1 Opinion of Kirkpatrick Previously filed
& Lockhart LLP with Form S-8 on
re: legality May 28, 1998
23.1 Consent of Kirkpatrick Provided herewith
& Lockhart LLP
23.2 Consent of BDO Seidman, LLP Provided herewith
24.1 Power of Attorney Previously filed
with Form S-8 on
May 28, 1998
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