As filed with the Securities and Exchange Commission on August 2, 2002
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
NEOSE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 13-3549286
(State or other jurisdiction of (I.R.S employer Identification No.)
incorporation)
102 Witmer Road
Horsham, PA 19044
(Address of Principal Executive Offices)
Neose Technologies, Inc. Amended and Restated
1995 Stock Option/Stock Issuance Plan
Neose Technologies, Inc.
Employee Stock Purchase Plan
Non-Qualified Stock Option Agreement
with C. Boyd Clarke
(Full title of the Plan)
C. Boyd Clarke
President and Chief Executive Officer
Neose Technologies, Inc.
102 Witmer Road
Horsham, Pennsylvania 19044
(Name and Address of Agent for Service)
(215) 315-9000
(Telephone number, including area code of agent for service)
COPIES TO:
Debra J. Poul, Esq. Barry M. Abelson, Esquire
Vice President and General Counsel Pepper Hamilton LLP
Neose Technologies, Inc. 3000 Two Logan Square
102 Witmer Road Eighteenth and Arch Streets
Horsham, Pennsylvania 19044 Philadelphia, Pennsylvania 19103
(215) 981-4000
CALCULATION OF REGISTRATION FEE
==================================================================================================
Title of Securities to Amount to Be Proposed Maximum Proposed Maximum Amount of
Be Registered Registered(1) Offering Price Aggregate Offering Registration
Per Share (2) Price (2) Fee
==================================================================================================
Common Stock, $.01 par 1,150,000 $8.58 $9,867,000 $908.00
value(3)
Common Stock, $.01 par 50,000 $8.58 $429,000 $40.00
value(3)
Common Stock, $.01 par 487,520 $32.05 $15,625,016 $1,516.00
value(3)
==================================================================================================
Total 1,687,520(4) $2,464.00
==================================================================================================
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, this Registration
Statement also covers such additional shares as may hereinafter be offered or
issued to prevent dilution resulting from stock splits, stock dividends,
recapitalization or certain other capital adjustments.
(2) Calculated pursuant to Rule 457(c), (g) and (h) of the Securities Act of
1933, as amended, on the basis of the average of the high and the low sales
price per share of the Common Stock of Neose on July 26, 2002 as reported by the
Nasdaq National Market.
(3) Includes rights to purchase Neose Series A Junior Participating Preferred
Stock, or Rights. Prior to the occurrence of certain events, the Rights will not
be exercisable or evidenced separately from Neose Common Stock.
(4) Represents 1,150,000 additional shares of Common Stock subject to future
grants under the Company's Amended and Restated 1995 Stock Option/Stock Issuance
Plan, 50,000 additional shares of Common Stock subject to future grants under
the Company's Employee Stock Purchase Plan and 487,520 shares of Common Stock
underlying the Non-Qualified Stock Option Agreement with C. Boyd Clarke.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in documents to be
given to the recipients of the securities registered hereby in accordance with
Rule 428(b)(1) under the Securities Act of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Explanatory Note
----------------
This registration statement on Form S-8 relates, in part, to the
registration of an additional 1,200,000 shares of Common Stock, $.01 par value,
of the registrant including: (i) 1,150,000 shares which are securities of the
same class and relate to the same employee benefit plan, the Neose Technologies,
Inc. Amended and Restated 1995 Stock Option/Stock Issuance Plan, as those shares
registered in the registrant's registration statements on Form S-8, previously
filed with the Securities and Exchange Commission on February 15, 1996,
September 8, 1997, October 13, 1999, October 11, 2000 and November 14, 2001
(Registration Nos. 333-01410, 333-35283, 333-88913, 333-47718 and 333-73340
respectively) which are hereby incorporated by reference; and (ii) 50,000 shares
which are securities of the same class and relate to the same employee benefit
plan, the Neose Technologies, Inc. Employee Stock Purchase Plan, as those shares
registered in the registrant's registration statement on Form S-8, previously
filed with the Securities and Exchange Commission on February 15, 1996
(Registration No. 333-01410) which is hereby incorporated by reference.
Item 3. Incorporation of Certain Documents by Reference.
The following documents which have been filed by Neose Technologies,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") are incorporated by reference into this Registration Statement:
1. Our Annual Report on Form 10-K filed on March 29, 2002, for
the year ended December 31, 2001 as amended by our Annual
Report on Form 10-K/A filed on April 30, 2002;
2. Our Quarterly Report on Form 10-Q filed on April 29, 2002 for
the quarter ended March 31, 2002;
3. Our Current Reports on Form 8-K filed on (i) February 1, 2002;
(ii) April 4, 2002, as amended on April 29, 2002 and April 30,
2002; (iii) April 30, 2002, as amended on May 15, 2002; (iv)
May 14, 2002; and (v) June 13, 2002; and
4. The description of the Registrant's common stock contained in
the Registration Statement on Form S-3, filed with the
Commission on March 16, 2000, as amended, including any
amendments or reports filed for the purpose of updating such
description in which there is described the terms, rights and
provisions applicable to the Registrant's common stock and the
description of rights to
purchase preferred shares contained in the Registration
Statement on Form 8-A filed with the Commission on October 1,
1997.
In addition, all documents and reports filed by the Registrant
subsequent to the date hereof pursuant to Sections 13(a), 13(c), 14, and 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") (except, with
respect to Current Reports on Form 8-K, any information furnished under item 9),
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be part hereof from the date of filing of such documents or
reports. To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
The Company's financial statements incorporated by reference in this
Registration Statement were audited by Arthur Andersen LLP ("Andersen").
Effective April 29, 2002, the Company's Board of Directors approved the
dismissal of Andersen as the Company's independent auditors and the appointment
of KPMG LLP to serve as the Company's independent auditors. After reasonable
efforts, the Registrant has not been able to obtain the written consent of
Arthur Andersen LLP to the incorporation by reference of its report into this
Registration Statement. The Registrant has dispensed with the requirement to
file the written consent of Arthur Andersen LLP in reliance on Rule 437a
promulgated under the Securities Act of 1933, as amended (the "Securities Act").
Since the Registrant has not been able to obtain the written consent of Arthur
Andersen LLP, you will not be able to recover against Arthur Andersen LLP under
Section 11 of the Securities Act for any untrue statements of material fact
contained in the financial statements audited by Arthur Andersen LLP
incorporated by reference herein or any omissions to state a material fact
required to be stated therein.
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")
permits a corporation to 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, by
reason of the fact that he is or was a director, officer or agent of the
corporation or another enterprise if serving at the request of the corporation.
Depending on the character of the proceeding, a corporation may indemnify
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with such action,
suit or proceeding if the person indemnified acted in good faith and, in respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. In the case of an action by or in the right of the
corporation, no indemnification may be made with respect to 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 that, despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper. Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above, or in the defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
The Second Amended and Restated Certificate of Incorporation of the
Registrant limits the personal liability of directors to the Registrant or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director, provided, however, that this limitation does not apply to any
liability of a director (i) for any breach of the director's duty of loyalty to
the Registrant 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 Title 8 of the General Corporation Law of Delaware, or (iv)
for any transaction from which the director derived an improper personal
benefit.
The Second Amended and Restated Certificate of Incorporation of the
Registrant and Section 6 of Article 7 of Registrant's amended and restated
by-laws provides to the fullest extent permitted by Section 145 for the
indemnification of each 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, by reason of the fact
that he or she is or was, or has agreed to become, a director or officer of the
corporation, or is or was serving, or has agreed to serve, at the request of the
corporation, as a director, officer, or trustee of, or in a similar capacity
with, another corporation, partnership, joint venture, trust, or other
enterprise (including any employee benefit plan), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred by such person or on such person's behalf in
connection with such action, suit, or proceeding and any appeal therefrom.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The Index to Exhibits filed herewith and appearing immediately prior to
the exhibits hereto is incorporated herein by reference.
Item 9. Undertakings
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 paragraph (1)(i) and 1(ii) above do 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 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.
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.
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 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 Horsham, Pennsylvania, on the 1st day of August, 2002.
Neose Technologies, Inc.
By: /s/ C. Boyd Clarke
-------------------------------------
C. Boyd Clarke
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints C. Boyd Clarke, A. Brian Davis and Debra
J. Poul, and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her and in
his or her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and other registration statements and amendments thereto relating to the
Offering contemplated by this Registration Statement, and to file the same, with
all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and 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 said attorney-in-fact and agent or his substitute, 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 dates indicated:
Signature Title Date
------------------------------ ---------------------- --------------
/s/ C. Boyd Clarke President and Chief August 1, 2002
------------------------------ Executive Officer
C. Boyd Clarke (Principal Executive
Officer)
/s/ A. Brian Davis Principal Financial and August 1, 2002
------------------------------ Accounting Officer
A. Brian Davis
/s/ Stephen A. Roth Chairman of the Board July 30, 2002
------------------------------
Stephen A. Roth
/s/ William F. Hamilton Director July 30, 2002
------------------------------
William F. Hamilton
/s/ Douglas J. MacMaster, Jr. Director August 1, 2002
------------------------------
Douglas J. MacMaster, Jr.
/s/ P. Sherrill Neff Director July 31, 2002
------------------------------
P. Sherrill Neff
/s/ Mark H. Rachesky Director July 30, 2002
------------------------------
Mark H. Rachesky
/s/ Lowell E. Sears Director July 30, 2002
------------------------------
Lowell E. Sears
/s/ Elizabeth H.S. Wyatt Director July 30, 2002
------------------------------
Elizabeth H.S. Wyatt
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
5* Opinion of Pepper Hamilton LLP.
23 Consent of Pepper Hamilton LLP (contained in Exhibit 5).
24 Power of Attorney (included on signature page of this
Registration Statement).
99.1 Neose Technologies, Inc. 1995 Amended and Restated Stock
Option/Stock Issuance Plan, amended as of June 25, 2002
(incorporated by reference to Appendix A of the Registrant's
Proxy Statement filed with the Securities and Exchange
Commission on May 15, 2002).
99.2 Neose Technologies Employee Stock Purchase Plan, amended as of
June 25, 2002, (incorporated by reference to Appendix B of the
Registrant's Proxy Statement filed with the Securities and
Exchange Commission on May 15, 2002).
99.3 Non-Qualified Stock Option Agreement with C. Boyd Clarke dated
March 29, 2002 (incorporated by reference to the Form 8-K/A
filed with the Securities and Exchange Commission on April 30,
2002).
* Filed herewith.