-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JyQNNHM1yIoEJYPrFvEwqc6w0A7v3FEZm6dotOTXoWWklL9wY3GHaaI7U/p23Dda TACua5/ynxWL1zCcYaqyfg== 0001024739-98-001029.txt : 19981111 0001024739-98-001029.hdr.sgml : 19981111 ACCESSION NUMBER: 0001024739-98-001029 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19981110 EFFECTIVENESS DATE: 19981110 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ENTREMED INC CENTRAL INDEX KEY: 0000895051 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MEDICAL LABORATORIES [8071] IRS NUMBER: 581959440 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-67063 FILM NUMBER: 98743396 BUSINESS ADDRESS: STREET 1: 9610 MEDICAL CENTER DR STE 200 CITY: ROCKVILLE STATE: MD ZIP: 20850 BUSINESS PHONE: 3012179858 MAIL ADDRESS: STREET 2: 9610 MEDICAL CENTER DR STE 200 CITY: ROCKVILLE STATE: MD ZIP: 20850 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on November 10, 1998 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ENTREMED, INC. --------------------------------------------------- (Exact Name of registrant as specified in its charter) Delaware 58-1959440 ----------------------------- ----------------- (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 9610 Medical Center Drive, Suite 200 Rockville, Maryland 20850 ---------------------------------------------------------- (Address, including zip code, of principal executive offices) EntreMed, Inc. 1992 Stock Incentive Plan and EntreMed, Inc. Amended and Restated 1996 Stock Option Plan and Certain Compensatory Stock Warrants ------------------------- (Full title of the plans) John W. Holaday, Ph.D Chairman, President and Chief Executive Officer EntreMed, Inc. 9610 Medical Center Drive, Suite 200 Rockville, Maryland 20850 (301) 217-9858 ------------------------------------------------------ (Name, address, including zip code, and telephone number including area code, of agent for service) Copy to: Richard E. Baltz, Esq. Arnold & Porter 555 12th Street, N.W. Washington, D.C. 20004 (202) 942-5124 --------------------- Calculation of Registration Fee
- ---------------------------- ------------------- --------------------- ---------------------- ------------------------ Proposed Maximum Proposed Maximum Amount to be Offering Price Per Aggregate Offering Amount of Title of Securities to be Registered (1) Unit (2) Price (2) Registration Fee (3) Registered - ---------------------------- ------------------- --------------------- ---------------------- ------------------------ Common Stock, $0.01 par 1,750,000 $28.375 $49,656,250 $14,166 value per share 100,000 $13.00 $1,300,000 - ---------------------------- ------------------- --------------------- ---------------------- ------------------------
(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as amended, an additional undeterminable number of shares of Common Stock is being registered to cover any adjustment in the number of shares of Common Stock issuable pursuant to the anti-dilution provisions of the 1992 Stock Incentive Plan, the Amended and Restated 1996 Stock Option Plan and the Compensatory Stock Warrants. (2) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(h) based on (a) with respect to the 1,750,000 shares of the Registrant's Common Stock issuable pursuant to the Amended and Restated 1996 Stock Option Plan, the average of the high and low sale prices of the Common Stock as reported on November 5, 1998 on the Nasdaq National Market which date is within 5 business days prior to the date of the filing of this Registration Statement, and (b) with respect to the 100,000 shares of the Registrant's Common Stock issuable pursuant to the Compensatory Stock Warrants, the exercise price of such warrants. (3) In addition to the shares being registered by this Registration Statement, this Registration Statement also relates to 1,233,333 shares of the Registrant's Common Stock issuable pursuant to the 1992 Stock Incentive Plan for which Registration Statement on Form S-8, No. 333-26057 is currently effective. An additional registration fee of $4,392 was paid upon the initial filing of such registration statement registering a total of 1,233,333 shares of Common Stock. Pursuant to Rule 429 under the Securities Act of 1933, as amended, the Prospectus incorporated herein by reference that relates to shares of Common Stock registered pursuant to this Registration Statement also relates to a total of up to 1,233,333 shares of the Registrant's Common Stock registered pursuant to Registration Statement No. 333-26057 filed on April 29, 1997. In the event any of such previously registered shares are offered and sold prior to the date of this Registration Statement, the amount of such shares will not be included hereunder. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by EntreMed, Inc. ("Registrant" or "Company") with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No. 000-20713), are incorporated herein by reference and made a part hereof: (a) The Company's Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Commission on March 31, 1998, and Amendment to the Company's Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Commission on April 30, 1998; (b) The Company's Quarterly Reports on Form 10-Q for its fiscal quarters ended March 31, 1998, as filed with the Commission on May 15, 1998, June 30, 1998, as filed with the Commission on August 12, 1998, and September 30, 1998, as filed with the Commission on October 30, 1998; and (c) The description of the common stock of the Company, par value $0.01 per share ("Common Stock"), contained in a registration statement on Form 8-A filed under the Exchange Act by the Company on May 14, 1996, including any amendment or report filed for the purpose of updating such description. All documents and reports subsequently filed by the Company with the Commission after the date of this Registration Statement 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 Common Stock offered hereby has been sold or which deregisters such Common Stock then remaining unsold, shall be deemed to be incorporated in this Registration Statement by reference and shall 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 in this Registration Statement 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 other subsequently filed document which also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or so superseded, to constitute a part of this Registration Statement. Item 4. Description of Securities. Not Applicable. II-1 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 (the "DGCL") sets forth conditions and limitations governing the indemnification of officers and directors of the Company and certain other persons. Section 145 of the DGCL is hereby incorporated herein by reference. The Company's Certificate of Incorporation and Bylaws provide that the Company shall indemnify any person to the full extent permitted by the DGCL. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act"), may be permitted to directors, officers or controlling persons of the Company pursuant to the Company's Certificate of Incorporation and Bylaws and the DGCL, the Company has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. As authorized by Section 102(b)(7) of the DGCL, the Certificate of Incorporation also limits, to the fullest extent permitted by Delaware law, a director's liability for monetary damages for breach of fiduciary duty as a director. The effect of this provision is to eliminate the rights of the Company and its stockholders (through stockholders' derivative suits on behalf of the Company) to recover monetary damages against a director for breach of the fiduciary duty of care as a director (including breaches resulting from negligent or grossly negligent behavior) except in certain limited situations. This provision does not eliminate a director's duty of care nor does it limit or eliminate the rights of the Company or any stockholder to seek non-monetary relief or remedies such as an injunction or rescission in the event of a director's breach of the duty of care. These provisions will not alter the liability of directors under federal securities laws. The Company has obtained and maintains insurance policies having a face amount totaling $15,000,000 (subject to certain deductible provisions and exclusions) covering its officers and directors and indemnifying them against loss on account of claims made against them, including, but not limited to, damages, judgments, costs and the costs of defense of such claims, arising from breach of duty, neglect, error, negligent misrepresentations, omission or act, or any claim arising solely by reason of status as an officer or director. Item 7. Exemption from Registration Claimed Not Applicable. II-2 Item 8. Exhibits The exhibits listed on the Exhibit Index on page II-6 of this Registration Statement are filed herewith or are incorporated herein by reference to other filings. Item 9. Undertakings The 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, as amended; (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 (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those 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, as amended (the "Exchange Act") that are incorporated by reference in the Registration Statement; 2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new II-3 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; 4. That, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to section 13(a) or 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 new securities at that time shall be deemed to be the initial bona fide offering thereof. 5. Insofar as indemnification for liabilities arising under the Securities Act 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 Securities 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 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, as amended, the Company 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 Rockville, State of Maryland, on November 9, 1998. ENTREMED, INC. By: /s/ John W. Holaday --------------------------- John W. Holaday, Ph.D. Chairman of the Board of Directors, President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated:
Signature Title Date --------- ----- ---- /s/ John W. Holaday Chairman of the Board, President and November 9, 1998 - ------------------- Chief Executive Officer (Principal Executive John W. Holaday, Ph.D. Officer) /s/ R. Nelson Campbell Vice President and Chief Financial Officer November 9, 1998 - ---------------------- (Principal Financial and Accounting Officer) R. Nelson Campbell /s/ Donald S. Brooks Director November 9, 1998 - -------------------- Donald S. Brooks /s/ Samuel R. Dunlap, Jr. Executive Advisor and Director November 9, 1998 - ------------------------- Samuel R. Dunlap, Jr. /s/ Jerry Finkelstein Director November 9, 1998 - --------------------- Jerry Finkelstein /s/ Lee F. Meier Director November 9, 1998 - ---------------- Lee F. Meier /s/ Mark C.M. Randall Director November 9, 1998 - --------------------- Mark C.M. Randall /s/ Wendell M. Starke Director November 9, 1998 - --------------------- Wendell M. Starke
II-5 INDEX TO EXHIBITS Exhibit 4.1 Certificate of Incorporation, as restated and amended to date, of the Registrant (incorporated herein by reference to Exhibit 3.1(b) of the Registrant's Quarterly Report on Form 10-Q for its fiscal quarter ended September 30, 1998, filed with the Commission on October 30, 1998, and Exhibit 3.1(a) of the Registrant's Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Commission on March 31, 1998, and to the Registrant's Registration Statement on Form S-1 (File No. 333-3536) declared effective by the Commission on June 11, 1996.) Exhibit 4.2 Bylaws of the Registrant (incorporated herein by reference to the Registrant's Registration Statement on Form S-1 (File No. 333-3536) declared effective by the Commission on June 11, 1996.) Exhibit 4.3 EntreMed, Inc. 1992 Stock Incentive Plan (incorporated herein by reference to Exhibit 4.1 to the Registrant's Registration Statement on Form S-8 (File No. 333-26057) filed on April 29, 1997). Exhibit 4.4 EntreMed, Inc. Amended and Restated 1996 Stock Option Plan, filed herewith (incorporated herein by reference to Exhibit 10.27 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Commission on March 31, 1998). Exhibit 5 Opinion of Arnold & Porter, filed herewith. Exhibit 23.1 Consent of Arnold & Porter, included in the opinion filed as Exhibit 5 hereto. Exhibit 23.2 Consent of Ernst & Young LLP, filed herewith. Exhibit 24 Powers of Attorney of certain directors of the Registrant, filed herewith. II-6 EX-5 2 OPINION OF ARNOLD & PORTER EXHIBIT 5 [ARNOLD & PORTER LETTERHEAD] November 9, 1998 Board of Directors EntreMed, Inc. 9610 Medical Center Drive, Suite 200 Rockville, Maryland 20850 Re: Registration Statement on Form S-8 Gentlemen: We have acted as special counsel to EntreMed, Inc. (the "Company") in connection with the preparation of a registration statement on Form S-8 (the "Registration Statement") relating to the Company's Amended and Restated 1996 Stock Option Plan (the "1996 Plan") and Certain Compensatory Stock Warrants (the "Warrants") filed by the Company with the Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the "1933 Act") covering 1,850,000 shares (the "Shares") of common stock, par value $0.01 per share (the "Common Stock"), issuable pursuant to the 1996 Plan or upon exercise of the Warrants, as the case may be. This opinion is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. ss.229.601(b)(5), in connection with the Registration Statement. For purposes of and in connection with rendering the opinions set forth in this letter, we have examined such corporate records of the Company, including, without limitation, the 1996 Plan, the Warrants, the Company's Amended and Restated Certificate of Incorporation, as amended, its By-laws, and resolutions of the Board of Directors and stockholders of the Company, and such other documents as we deem necessary for rendering the opinions hereinafter expressed. The opinions set forth herein are subject to the following qualifications, which are in addition to any other qualifications contained herein: A. We have assumed without verification the genuineness of all signatures on all documents, the legal capacity of all natural persons, the authority of the parties (other than the Company) executing such documents, the authenticity of all documents submitted to us as originals, and the conformity to original documents of all documents submitted to us as copies. We also have assumed the accuracy, completeness and authenticity of statements of fact on which we are relying and have made no independent investigations thereof. B. The opinions set forth herein are based on existing laws, ordinances, rules, regulations, court and administrative decisions as they presently have been interpreted and we can give no assurances that our opinions would not be different after any change in any of the foregoing occurring after the date hereof. C. We have assumed without verification that, with respect to the minutes of any meetings of the Company's Board of Directors or any committees thereof or of the stockholders of the Company that we have examined, due notice of the meetings was given or duly waived, the minutes accurately and completely reflect all actions taken at the meetings and a quorum was present and acting throughout the meetings. D. We have assumed without verification the accuracy and completeness of all corporate records made available to us by the Company. E. We express no opinion as to the effect or application of any laws or regulations other than the General Corporation Law of the State of Delaware. As to matters governed by such law, we have relied exclusively on the latest standard compilation of such statute as reproduced in commonly accepted unofficial publications available to us. Based upon, subject to and limited by the foregoing, upon the assumption that there will be no material changes in the documents we have examined and the matters investigated referred to above, we are of the opinion that, under the General Corporation Law of the State of Delaware: (i) the 1,750,000 shares of Common Stock issuable or issued pursuant to the 1996 Plan have been duly authorized by the Company and, when and as issued and delivered upon the exercise of options in the manner and on the terms described in the 1996 Plan and for legal consideration of not less than $0.01 per share, will be or have been validly issued, fully paid and nonassessable; and (ii) the 100,000 shares of Common Stock issuable pursuant to the Warrants have been duly authorized by the Company and, when issued and delivered upon the exercise of such Warrants in the manner and on the terms described in the Warrants, will be validly issued, fully paid and nonassessable. This letter does not address any matters other than those expressly addressed herein. This letter is given for your sole benefit and use. No one else is entitled to rely hereupon. This letter speaks only as of the date hereof. We undertake no responsibility or obligation to update or supplement it after such date or to advise you of any changes in the foregoing subsequent to the delivery of this opinion. 2 We hereby consent to your filing of this opinion as Exhibit 5 to the Registration Statement. By giving such consent we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Sincerely yours, /s/ Arnold & Porter 3 EX-23.2 3 CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm in the Registration Statement on Form S-8 pertaining to the EntreMed, Inc. 1992 Stock Incentive Plan and EntreMed, Inc. Amended and Restated 1996 Stock Option Plan and Certain Compensatory Stock Warrants of EntreMed, Inc. for the registration of 1,850,000 shares of its common stock and to the incorporation by reference therein of our report dated February 5, 1998, with respect to the consolidated financial statements of EntreMed, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 1997, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP Atlanta, Georgia November 6, 1998 EX-24 4 POWERS OF ATTORNEY EXHIBIT 24 POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each undersigned director and/or officer of EntreMed, Inc. a corporation organized under the laws of the state of Delaware (the "Corporation"), hereby constitutes and appoints John W. Holaday, Robert B. Ott and Richard E. Baltz and each of them (with full power to each of them to act alone), his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her on his or her behalf and in his or her name, place and stead, in any and all capacities, to sign, execute and affix his or her seal to and file with the Securities and Exchange Commission (or any other governmental or regulatory authority) a Registration Statement on Form S-8 or any other appropriate form and all amendments or supplements (including post-effective amendments) thereto with all exhibits and any and all documents required to be filed therewith or with respect thereto, relating to the registration of shares of common stock, par value $0.01 per share, of the Corporation (the "Common Stock") issuable pursuant to the Corporation's Amended and Restated 1996 Stock Option Plan, the Corporation's 1992 Stock Incentive Plan and the exercise of certain issued compensatory warrants to purchase Common Stock, and grants to each of them full power and authority to do and to perform each and every act and thing requisite and necessary to be done in and about the premises in order to effectuate the same as fully and to all intents and purposes as he himself or she herself might or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. IN WITNESS HEREOF, the undersigned director and/or officer has hereunto set his or her hand and seal, as of the date specified.
Signature Title Date - --------- ----- ---- /s/ John W. Holaday Chairman of the Board, President and November 9, 1998 - ------------------- Chief Executive Officer (Principal Executive Officer) John W. Holaday, Ph.D. /s/ R. Nelson Campbell Vice President and Chief Financial Officer November 9, 1998 - ---------------------- (Principal Financial and Accounting Officer) R. Nelson Campbell /s/ Samuel R. Dunlap Executive Advisor and Director November 9, 1998 - -------------------- Samuel R. Dunlap, Jr. /s/ Donald S. Brooks Director November 9, 1998 - -------------------- Donald S. Brooks /s/ Jerry Finkelstein Director November 9, 1998 - --------------------- Jerry Finkelstein /s/ Lee F. Meier Director November 9, 1998 - ---------------- Lee F. Meier /s/ Mark C.M. Randall Director November 9, 1998 - --------------------- Mark C.M. Randall /s/ Wendell M. Starke Director November 9, 1998 - --------------------- Wendell M. Starke
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