Registration No. _________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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Boston Life Sciences, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 87-0277826
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(State or other jurisdiction of incorporation (I.R.S. Employer
or organization) identification no.)
31 Newbury Street, Suite 300
Boston, Massachusetts 02116
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(Address of Principal Executive Offices) (Zip Code)
Boston Life Sciences, Inc.
1998 Omnibus Stock
Option Plan
------------------------------
(Full title of the plan)
S. David Hillson
President and Chief Executive Officer
Boston Life Sciences, Inc.
31 Newbury Street, Suite 300
Boston, Massachusetts 02116
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(Name and address of agent for service)
(617) 425-0200
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(Telephone number, including area code, of agent for service)
with copies to:
Raymond D. Agran, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
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Title of Proposed Maximum Proposed Maximum
Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered(1) Registered Share(2) Price(2) Registration Fee
- -----------------------------------------------------------------------------------------------------------------
Common Stock, par 500,000 (2) $ 1,627,132 $ 453
value $.01 per shares
share
===================================================================================================================
(1) Pursuant to Rule 416, this Registration Statement shall also cover any
additional shares of Common Stock which may become issuable under the 1998
Omnibus Stock Option Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the receipt
of consideration which results in an increase in the number of the
Company's outstanding shares of Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee. In
accordance with Rules 457(c) and (h), the price shown is based upon (i)
496,000 shares offered pursuant to options outstanding exercisable at the
following prices: 22,000 shares at $ 4.53 per share, 441,000 shares at
$3.25 per share, 25,000 shares at $2.15 per share, and 8,000 shares at
$2.09 per share; and (ii) 4,000 shares reserved for issuance upon exercise
of options to be granted in the future, the proposed offering price of
which has been determined based upon the average of the high and low prices
reported for the Common Stock on the Nasdaq SmallCap Market on June 3,
1999, $5.938.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required to be included in
Part I of this Registration Statement will be given or sent to all persons who
participate in the Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan
(the "Plan"), as specified by Rule 428.
PART II - INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Incorporation of Certain Documents by Reference.
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The following documents or portions of documents filed by the Company (File No.
0-06533) with the Commission are incorporated hereby by reference:
(i) Annual Report on Form 10-K, as amended by the Form 10-K/A, for the
fiscal year ended December 31, 1998.
(ii) Quarterly Report on Form 10-Q for the period ended March 31, 1999.
(iii) Current Reports on Form 8-K filed January 28, 1999, February 10,
1999, February 19, 1999 and March 23, 1999.
(iv) The description of certain of the Company's warrants to purchase
common stock and certain preferred stock purchase rights related to
the Company's Stockholder Rights Plan which are contained in the
Company's Registration Statements on Form 8-A filed under the
Exchange Act, including any amendment or reports filed for the
purpose of updating such descriptions.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement and to be a
part hereof from the date of the filing of such reports or documents. Any
statement contained in a document, all or a portion of which is 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 or
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this Prospectus.
Item 4. Description of Securities.
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GENERAL
Boston Life Sciences is authorized to issue 25,000,000 shares of
Common stock and 1,000,000 shares of preferred stock, each with a par value $.0l
per share. Under its certificate of incorporation, its Board of Directors is
authorized, without stockholder approval, to issue such preferred stock into
series with such voting rights, designations, preferences, limitations and
special rights as may be designated by the Board of Directors from time to time.
Shares of our common stock are being registered under this
registration statement. The following is a summary description of our
outstanding common stock and is qualified in its entirety by reference to our
certificate of incorporation and bylaws, which are exhibits to or incorporated
by reference in the registration statement of which this prospectus is a part.
Common Stock
Subject to the rights and preferences of our preferred stock, holders
of shares of the common stock are entitled to receive dividends, as and to the
extent dividends may be declared by our Board of Directors, out of funds legally
available therefor. In the event of a liquidation, dissolution or winding up of
Boston Life Sciences, holders of shares of the common stock are entitled to
share ratably in all assets remaining after payment of liabilities and
preferences to holders of preferred stock. Holders of shares of common stock are
entitled to one vote per share on all matters on which stockholders are entitled
to vote. The holders of a majority of the outstanding shares of common stock
entitled to vote constitutes a quorum for taking action by the stockholders.
Except for matters where a higher vote is required by law, the affirmative vote
of the holders of shares of common stock present or represented and entitled to
vote is required to take any such action. Holders of shares of the common stock
have no preemptive, conversion or other subscription rights. There are no
redemption, sinking fund or call provisions applicable to the common stock.
The holders of the common stock have rights under a stockholder rights
plan which has been adopted by the Board of Directors. Under the rights plan,
the holders of common stock received one right (the "right") to purchase a
fractional share of a new class of preferred stock for each share of common
stock owned by such holder. If a person or a group acquires fifteen percent or
more of the outstanding shares of the common stock, the rights may separate from
the shares of common stock and become exercisable. Once the rights are
exercised, the rights plan may allow holders of the rights to purchase common
stock (other than the person or group acquiring fifteen percent of the common
stock) at a substantial discount. The rights will expire in September 2001
unless exercised by the holders or redeemed or exchanged by us. The rights plan
could make it more difficult, and therefore discourage attempts, to acquire
control of Boston Life Sciences. This description of the rights plan is
qualified by reference to the registration statement on Form 8-A relating to the
rights plan, which is incorporated herein by reference and made a part hereof.
2
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 Company has adopted the provisions of Section 102(b)(7) of the
Delaware General Corporation Law (the "DGCL") which eliminate or limit the
personal liability of a director to the Company or its stockholders for monetary
damages for breach of fiduciary duty under certain circumstances. Furthermore,
under Section 145 of the DGCL, the Company shall indemnify each of its directors
and officers against expenses (including reasonable costs, disbursements, and
counsel fees) in connection with any proceeding involving such person by reason
of having been an officer or director of the Company. The DGCL authorizes the
Company to grant indemnities to directors and officers in terms sufficiently
broad to permit indemnification of such persons under certain circumstances for
liabilities (including reimbursement for expenses incurred) arising under the
Securities Act of 1933. In addition, the Company has obtained Directors' and
Officers' Liability Insurance, which insures its officers and directors against
certain liabilities such persons may incur in their capacities as officers or
directors of the Company.
Article 6 of the Company's Amended and Restated Certificate of
Incorporation provides as follows:
SIXTH: No director of the Corporation shall be personally liable to
the Corporation or any of 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 Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law, as the same
exists or hereafter may be amended, or (iv) for any transaction from
which the director derived an improper personal benefit. If the
Delaware General Corporation Law hereafter is amended to authorize the
further elimination or limitation of the liability of directors, then
the liability of a director of the Corporation, in addition to the
limitation on personal liability provided herein, shall be limited to
the fullest extent permitted by the amended Delaware General
Corporation Law. Any repeal or modification of this paragraph by the
stockholders of the Corporation shall be prospective only, and shall
not adversely affect any limitation on the personal liability of a
director of the Corporation existing at the time of such repeal or
modification.
3
Article VI of the Company's Amended and Restated By-Laws provides in
relevant part as follows:
SECTION 1. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (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 expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him in connection with such action, suit or
proceeding 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 action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalents, 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, and, with respect to any criminal action or proceeding,
had reasonable cause to believe that his conduct was unlawful.
SECTION 2. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending
or completed action or suit 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 as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit 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 except that no
indemnification shall be made in respect of 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 the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in
view of all 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.
Item 7. Exemption from Registration Claimed.
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Not applicable.
4
Item 8. Exhibits.
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Exhibit
Sequential
Number Description
- ---------- -----------
4 Specimen copy of Stock Certificate for shares of Common Stock of
the Registrant (filed as an exhibit to the Company's Registration
Statement on Form S-3 filed with the Security and Exchange
Commission, Registration Number 33-25955)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in
its opinion filed as Exhibit 5 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page).
99 Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan
Item 9. Undertakings.
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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. 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) 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 (1)(i) and (1)(ii) above do not apply if the
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registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment
5
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.
(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. Filings Incorporating Subsequent Exchange Act Documents by Reference
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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 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. Request for Acceleration of Effective Date or Filing of Registration
Statement or Form S-8
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 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, 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 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 City of Boston, Commonwealth of Massachusetts, on June 4,
1999.
6
BOSTON LIFE SCIENCES, INC.
By: /s/ S. David Hillson
_____________________
S. David Hillson
President and Chief Executive Officer
We, the undersigned directors and officers of Boston Life Sciences, Inc.,
do hereby constitute and appoint each of S. David Hillson and Joseph P. Hernon,
each with full power of substitution, our true and lawful attorney-in-fact and
agent to do any and all acts and things in our names and in our behalf in our
capacities stated below, which acts and things either of them may deem necessary
or advisable to enable Boston Life Sciences, Inc. to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission, in connection with this Registration
Statement, including specifically, but not limited to, power and authority to
sign for any or all of us in our names, in the capacities stated below, any and
all amendments (including post-effective amendments) hereto; and we do hereby
ratify and confirm all that they shall do or cause to be done by virtue hereof.
7
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement on Form S-8 has been signed by the following persons in the capacities
and on the dates indicated.
Signature Title Date
- ------------------------------------ ---------------------------------- --------------
/s/ S. David Hillson President and Chief Executive June 4, 1999
- --------------------------------- Officer and Director (Principal
S. David Hillson Executive Officer)
/s/ Joseph P. Hernon Executive Vice President, June 4, 1999
- --------------------------------- Chief Financial Officer and
Joseph P. Hernon Secretary (Principal Financial
Officer and Principal Accounting
Officer)
/s/ Colin B. Bier, Ph.D. Director June 4, 1999
- ---------------------------------
Colin B. Bier, Ph.D.
/s/ Edson D. de Castro Director and Chairman June 4, 1999
- ---------------------------------
Edson D. de Castro
/s/ Adrian M. Gerber Director June 4, 1999
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Adrian M. Gerber
/s/ Marc E. Lanser, M.D. Director, Executive Vice President June 4, 1999
- --------------------------------- and Chief Scientific Officer
Marc E. Lanser, M.D.
/s/ Ira W. Lieberman, Ph.D. Director June 4, 1999
- ---------------------------------
Ira W. Lieberman, Ph.D.
/s/ E. Christopher Palmer, CPA Director June 4, 1999
- ---------------------------------
E. Christopher Palmer, CPA
8
EXHIBIT INDEX
Number Exhibit
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4 Specimen copy of Stock Certificate for shares of Common Stock of the
Registrant (filed as an exhibit to the Company's Registration Statement
on Form S-3 filed with the Security and Exchange Commission,
Registration Number 33-25955)
5 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in its
opinion filed as Exhibit 5 hereto).
23.2 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on signature page).
99 Boston Life Sciences, Inc. 1998 Omnibus Stock Option Plan