As filed with the Securities and Exchange Commission on March 24, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ATLANTIC PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-389269
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
1017 MAIN CAMPUS DRIVE, SUITE 3900
RALEIGH, NORTH CAROLINA 27606
(Address of principal executive offices) (Zip Code)
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1995 STOCK OPTION PLAN
(Full title of the Plan)
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JON D. LINDJORD
PRESIDENT & CHIEF EXECUTIVE OFFICER
1017 MAIN CAMPUS DRIVE, SUITE 3900, RALEIGH, NORTH CAROLINA 27606
(Name and address, including zip code of agent for service)
(919) 513-7020
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) per Share(2) Price(2) Fee
------------- --------------- ------------- ------------ --------------------
Common Stock, $0.001 par value 59,783 shares $6.00 $358,698.00 $105.82
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Atlantic Pharmaceuticals,
Inc. 1995 Stock Option Plan, by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in
the number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended (the "1933 Act"), on the basis of the
average of the high and low selling prices per share of Registrant's
Common Stock on March 19, 1998 as reported on the Nasdaq Small Cap
Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Atlantic Pharmaceuticals, Inc. (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission ("SEC"):
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1997, filed with the SEC on
March 23, 1998; and
(b) The Registrant's Registration Statement No. 000-27282 on
Form 8-A filed with the SEC on November 28, 1995, pursuant
to Section 12(b) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), in which there is described the
terms, rights and provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be 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 herein or in any subsequently filed
document which also is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such 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
Section 145 of the Delaware General Corporation Law ("Section 145")
authorizes a court to award or a corporation's Board of Directors to grant
indemnification to directors and officers in terms sufficiently broad to
permit such indemnification under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities
Act of 1933, as amended (the "1933 Act"). Article Ten of the Registrant's
Restated Certificate of Incorporation and Article Seven of the Registrant's
Restated Bylaws provide for mandatory indemnification by the Registrant of
all persons the Registrant may indemnify under Section 145 to the maximum
extent permitted by the Delaware General Corporation Law. Article Nine of
the Registrant's Restated Certificate of Incorporation provides that the
personal liability of its directors to the Registrant is eliminated to the
fullest extent permitted by the Delaware General Corporation Law. These
provisions do not eliminate the director's fiduciary duty, and in appropriate
circumstances equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition,
each director has entered into a separate indemnification agreement
(effective June 1997) with the Registrant and will continue to be subject to
liability for breach of the director's duty of loyalty to the Company for
acts or omissions not in good faith or involving intentional misconduct, for
knowing violations of law, for actions leading to improper personal benefit
to the director, and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. These
provisions also do not affect a director's responsibilities under any other
law, such as the federal securities laws or state or federal environmental
laws.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
4 Instruments Defining Rights of Stockholders. Reference
is made to Registrant's Registration No. 000-27282 on
Form 8-A which is incorporated herein by reference
pursuant to Item 3(b) of this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG Peat Marwick LLP - Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1995 Stock Option Plan (as amended and restated June 9, 1996).
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement.
99.4* Form of Addendum to Stock Option Agreement (Special Tax
Elections).
99.5* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change in Control).
99.6* Form of Addendum to Stock Option Agreement (Limited Stock
Appreciation Rights).
99.7* Form of Notice of Grant of Automatic Stock Option (Initial
Grant).
99.8* Form of Notice of Grant of Automatic Stock Option (Annual
Grant).
99.9* Form of Automatic Stock Option Agreement.
* Exhibits 99.2 through 99.9 are incorporated herein by reference to
Exhibits 99.2 through 99.9, respectively, to Registrants's Registration
Statement No. 333-15807 on Form S-8, filed with the SEC on November 8,
1996.
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 1933 Act, (ii) to reflect in
the prospectus any facts or events arising after the effective date of this
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 this Registration Statement and (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in this Registration Statement or any material change to
such information in this Registration Statement; PROVIDED, however, that
clauses (1)(i) and (1)(ii) shall not apply if 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 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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 initial
bona fide offering thereof and (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 Registrant's 1995 Stock Option Plan.
B. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the 1934 Act that is incorporated by reference into this 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.
II-2
C. Insofar as indemnification for liabilities arising
under the 1933 Act may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the indemnification provisions
summarized in Item 6 or otherwise, the Registrant has been advised that, in
the opinion of the SEC, such indemnification is against public policy as
expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
II-3
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 Raleigh, State of North Carolina, on
this 19th day of March, 1998.
ATLANTIC PHARMACEUTICALS, INC.
By: /s/ Jon D. Lindjord
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Jon D. Lindjord
Chief Executive Officer, President and Director
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Atlantic
Pharmaceuticals, Inc., a Delaware corporation, do hereby constitute and
appoint Jon D. Lindjord the lawful attorney-in-fact and agent with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the
Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with
this Registration Statement. Without limiting the generality of the
foregoing power and authority, the powers granted include the power and
authority to sign the names of the undersigned officers and directors in the
capacities indicated below to this Registration Statement, to any and all
amendments, both pre-effective and post-effective, and supplements to this
Registration Statement, and to any and all instruments or documents filed as
part of or in conjunction with this Registration Statement or amendments or
supplements thereof, and each of the undersigned hereby ratifies and confirms
that said attorney and agent, shall do or cause to be done by virtue hereof.
This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title Date
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/s/ Jon D. Lindjord Chief Executive Officer, President March 19, 1998
- ----------------------------- and Director
Jon D. Lindjord
/s/ Shimshon Mizrachi Chief Financial Officer March 19, 1998
- ----------------------------- (Principal Financial and
Shimshon Mizrachi Accounting Officer)
Signature Title Date
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/s/ Robert Fildes Director March 19, 1998
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Robert Fildes
/s/ Yuichi Iwaki Director March 19, 1998
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Yuichi Iwaki, M.D., Ph.D.
/s/ Steve H. Kanzer Director March 19, 1998
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Steve H. Kanzer
/s/ John K. A. Prendergast
- ----------------------------- Director March 19, 1998
John K. A. Prendergast, Ph.D.
/s/ Paul D. Rubin
- ----------------------------- Director March 19, 1998
Paul D. Rubin, M.D.
II-5
EXHIBIT INDEX
Exhibit
Number Exhibit
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4 Instruments Defining Rights of Stockholders. Reference
is made to Registrant's Registration No. 000-27282 on
Form 8-A which is incorporated herein by reference
pursuant to Item 3(b) of this Registration Statement.
5 Opinion and Consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG Peat Marwick LLP - Independent
Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained
in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 1995 Stock Option Plan (as amended and restated June 9,
1996).
99.2* Form of Notice of Grant of Stock Option.
99.3* Form of Stock Option Agreement.
99.4* Form of Addendum to Stock Option Agreement (Special Tax
Elections).
99.5* Form of Addendum to Stock Option Agreement (Involuntary
Termination Following Change in Control).
99.6* Form of Addendum to Stock Option Agreement (Limited
Stock Appreciation Rights).
99.7* Form of Notice of Grant of Automatic Stock Option
(Initial Grant).
99.8* Form of Notice of Grant of Automatic Stock Option
(Annual Grant).
99.9* Form of Automatic Stock Option Agreement.
* Exhibits 99.2 through 99.9 are incorporated herein by reference to
Exhibits 99.2 through 99.9, respectively, to Registrants's Registration
Statement No. 333-15807 on Form S-8, filed with the SEC on November 8,
1996.