1
As filed with the Securities and Exchange Commission on October 30, 1998
Registration No.
----------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
NEOPHARM, INC.
(Exact name of Registrant as specified in its charter)
Delaware 51-0327886
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification Number)
100 CORPORATE NORTH, SUITE 215
BANNOCKBURN, ILLINOIS 60015
(847) 295-8678
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
1998 EQUITY INCENTIVE PLAN
(Full title of the plan)
JAMES M. HUSSEY
CHIEF EXECUTIVE OFFICER
NEOPHARM, INC.
100 CORPORATE NORTH, SUITE 250
BANNOCKBURN, ILLINOIS 60015
(847) 295-8678
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
COPY TO:
CHRISTOPHER R. MANNING
BURKE, WARREN, MACKAY & SERRITELLA, P.C.
330 N. WABASH, SUITE 2200
CHICAGO, ILLINOIS 60611
(312) 840-7000
CALCULATION OF REGISTRATION FEE
PROPOSED PROPOSED
TITLE OF EACH CLASS OF AMOUNT TO MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO BE BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE(2)
---------- --------- -------------- ------
Common Stock, $.0002145 par 1,500,000 $4.125(1) $6,187,500(1) $1,825.31(1)
value, per share
(1) Estimated pursuant to Rule 457 of Regulation C solely for the purpose of
calculating the registration fee. The proposed maximum offering price per share
with respect to the 1,500,000 shares authorized and reserved for issuance under
the 1998 Equity Incentive Plan has been estimated to be the average of the high
and low prices reported in the American Stock Exchange on October 26, 1998.
(2) Amount of Registration Fee was calculated pursuant to Section 6(b) of the
Securities Act of 1933, which states that the fee shall be "$295 per $1 million"
of the maximum aggregate price at which such securities are proposed to be
offered. The Registration Fees are therefore calculated by multiplying the
aggregate offering or sales amount by 0.000295.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by NeoPharm, Inc. (the "Registrant" or the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are incorporated by reference in this registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31, 1998 and June 30, 1998;
(c) The description of the Registrant's common stock, par value
$.0002145 per share (the "Common Stock"), contained in the Registrant's
Registration Statement (File No. 33-90516) filed under Section 12 of
the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All 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 of such 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 of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed
filed under such provisions. For the purposes of this Registration
Statement, any statement in a document incorporated by reference shall
be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a
statement in such document. Any 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Certificate of Incorporation eliminates the liability of the
Registrant's directors for monetary damages for breach of fiduciary duty as
directors to the maximum extent provided by Delaware Law. The Registrant's
By-laws provide that the Registrant shall indemnify its officers, directors and
persons who are or were serving as officers or directors of another entity at
the request of the Corporation to the maximum extent permitted by Delaware Law.
Section 145 of the DGCL provides that a corporation may indemnify any person
made a party to an action (other than an action by or in the right of the
corporation) by reason of the fact that he or she was a director, officer,
employee or agent of the corporation or was serving at the request of the
corporation against expenses (including attorneys' fees), judgments, fines, and
amounts paid in settlement actually and reasonably incurred by him or her in
connection with such action if he or she acted in good faith and in a manner he
or she reasonably believed to be in, or not opposed to, the best interests of
the corporation and, with respect to any criminal action (other than an action
by or in the right of the corporation), has no reasonable cause to believe his
or her conduct was unlawful.
II-1
3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
Number Description
- ------------------
4.1 1998 Equity Incentive Plan.
5.1 Opinion of Burke, Warren, MacKay & Serritella, P.C.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Counsel (included in the Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (included on the signature page).
ITEM 9. UNDERTAKINGS.
(a) 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;
(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;
(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)(1)(i) and (a)(1)(ii) of
this section do not apply if the information required to be
included in a post-effective amendment by these paragraphs is
contained in periodic reports filed with or furnished to the
Commission 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 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.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the foregoing
provisions, or
II-2
4
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 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, suite 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 policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Village of Bannockburn, State of Illinois, on the 22nd day of
October, 1998.
NEOPHARM, INC.
By: /s/ James M. Hussey
-------------------------------------
James M. Hussey
President and Chief Executive Officer
II-3
5
POWER OF ATTORNEY
We, the undersigned directors and officers of NeoPharm, Inc., do hereby make,
constitute and appoint James M. Hussey, Kevin Harris and Christopher R. Manning,
and each of them acting individually, our true and lawful attorneys-in-fact and
agents, with power to act without any other and with full power of substitution,
to do any and all acts and things in our name and behalf in our capacities as
directors and officers, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, or any related Registration
Statement that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act of 1933, as amended, and to file the same, with 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 or 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 each of said attorneys-in-fact and agents, 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, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
Signature Title Date
--------- ----- ----
/s/ John N. Kapoor Chairman of the Board October 21, 1998
- ------------------
John N. Kapoor
/s/ James M. Hussey President, Chief Executive Officer October 21, 1998
- -------------------
James M. Hussey and Director (Principal Executive
Officer)
/s/ Kevin Harris Vice President, Chief Financial October 21 1998
- ---------------- Officer and Treasurer (Principal
Kevin Harris Financial Officer and Principal
Accounting Officer)
/s/ Erick E. Hanson Director October 21, 1998
- ---------------------
Erick E. Hanson
/s/ Anatoly Dritschilo Director October 21, 1998
- ----------------------
Anatoly Dritschilo, M.D.
/s/ Aquilur Rahman Director October 21, 1998
- ------------------
Aquilur Rahman, Ph.D.
/s/ Sander Flaum Director October 26, 1998
- ----------------
Sander Flaum
II-4
6
EXHIBIT INDEX
Exhibit
Number Description
- ------ -----------
4.1 1998 Equity Incentive Plan.
5.1 Opinion of Burke, Warren, MacKay & Serritella, P.C.
23.1 Consent of Arthur Andersen LLP.
23.2 Consent of Burke, Warren, MacKay & Serritella, P.C. (included in the Opinion filed as
Exhibit 5.1).
24.1 Power of Attorney (included on the signature page).
II-5