<PAGE> 1
As filed with the Securities and Exchange Commission on July 21, 1997.
Registration No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VAXCEL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 58-2027283
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
154 TECHNOLOGY PARKWAY
TECHNOLOGY PARK/ATLANTA
NORCROSS, GEORGIA 30092
(Address, including zip code, of principal executive offices)
VAXCEL, INC. 1993 STOCK OPTION PLAN
VAXCEL, INC. REPLACEMENT STOCK OPTION
PLAN FOR ZYNAXIS OPTIONS
(Full title of the plans)
<TABLE>
<S> <C>
PAUL J. WILSON III Copy to:
VAXCEL, INC. GEORGE M. MAXWELL, JR.
154 TECHNOLOGY PARKWAY ALSTON & BIRD LLP
TECHNOLOGY PARK/ATLANTA ONE ATLANTIC CENTER
NORCROSS, GEORGIA 30092 1201 WEST PEACHTREE STREET
(770) 453-0195 ATLANTA, GEORGIA 30309-3424
(Name, address, including zip code, and telephone number, (404) 881-7000
including area code, of agent for service)
</TABLE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered(1) Per Share(2) Offering Price(3) Registration Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 1,015,480 $2.09 $2,117,439.50 $641.65
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Consists of up to 1,000,000 shares of Common Stock that may be issuable
upon exercise of options granted under the Vaxcel, Inc. 1993 Stock Option
Plan and up to 15,480 shares of Common Stock that may be issuable upon
exercise of options of Zynaxis, Inc. that were assumed by the registrant in
connection with a business combination with Zynaxis, Inc.
(2) Estimated as the Proposed Maximum Aggregate Offering Price divided by the
number of shares to be registered.
(3) Estimated (pursuant to paragraphs (h) and (c) of Rule 457) as the sum of:
(i) the average exercise price of outstanding options ($2.18) multiplied by
819,933, the number of options outstanding, and (ii) $1.6875, the average
of the bid and asked prices of the Registrant's Common Stock on July 15,
1997, as reported by the OTC Bulletin Board, multiplied by 195,547, the
number of additional options that could be granted.
<PAGE> 2
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference into this
registration statement and are deemed to be a part hereof from the date of the
filing of such documents:
(1) The prospectus dated April 18, 1997 included in the
registration statement on Form S-4 (Registration No. 333-19125) of Vaxcel, Inc.
(the "Company" or the "Registrant"), which includes audited financial statements
for the year ended December 31, 1996.
(2) All other reports filed by the Company pursuant to Section 13
(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1996.
(3) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A as filed with the Securities and
Exchange Commission on April 11, 1997, including all amendments or reports filed
for the purpose of updating such description.
(4) All other documents subsequently filed by the Company 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 securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Any statement contained in a document incorporated or deemed
incorporated herein by reference shall be deemed to be modified or superseded
for the purpose of this registration statement to the extent that a statement
contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference 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 102(b)(7) of the Delaware General Corporation Law enables a
corporation in its certificate of incorporation to eliminate or limit personal
liability of members of this board of directors or governing body for violations
of a director's fiduciary duty of care. However,
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directors remain liable for breaches of duties of loyalty, failing to act in
good faith, engaging in intentional misconduct, knowingly violating a law,
paying a dividend or approving a stock repurchase which was illegal under
Delaware General Corporation Law Section 174 or obtaining an improper personal
benefit. In addition, equitable remedies for breach of fiduciary duty, such as
injunction or recession, are available.
Article VII of the Registrant's Certificate of Incorporation provides
as follows:
No person shall be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director; provided, however, that the foregoing shall not eliminate or
limit the liability of a director (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, or (iv) for any transaction from which the
director derived any improper personal benefit. If the Delaware General
Corporation Law is amended hereafter to authorize corporate action
further eliminating or limiting the personal liability of directors,
then the liability of a director of the corporation shall be eliminated
or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended. Any amendment, repeal or modification
of this Article VII shall not adversely affect any right or protection
of a director of the Corporation existing hereunder with respect to any
act or omission occurring prior to such amendment, repeal or
modification. For purposes of this Article VII, "fiduciary duty as a
director" also shall include any fiduciary duty arising out of serving
at the Corporation's request as a director of another corporation,
partnership, limited liability company, joint venture or other
enterprise, and "personal liability to the Corporation or its
stockholders" also shall include any liability to such other
corporation, partnership, limited liability company, joint venture,
trust or other enterprise, and any liability to the Corporation in its
capacity as a security holder, joint venturer, partner, beneficiary,
creditor or investor of or in any such other corporation, partnership,
limited liability company, joint venture, trust or other enterprise.
Section 145 of the Delaware General Corporation law empowers the
Corporation to indemnify its officers and directors under certain circumstances.
The pertinent provisions of that statute read as follows:
"(a) A corporation may 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
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<PAGE> 4
his conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contenders or its equivalent, 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.
"(b) A corporation may 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, 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)
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 and 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.
"(c) To the extent that a director, officer, employee or agent
of a corporation has been successful on the merits or otherwise in
defense of any action, suit or proceeding referred to in subsections
(a) and (b) of this section, or in 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.
"(d) Any indemnification under subsections (a) and (b) of this
section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper
in the circumstances because he has met the applicable standard of
conduct set forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the directors who
are not parties to such action, suit or proceeding, even though less
than a quorum, or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion,
or (3) by the shareholders.
"(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal, administrative or
investigative action, suit or proceeding may be paid by the corporation
in advance of the final disposition of such action, suit or proceeding
upon receipt of an under-taking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that
he is not entitled to be indemnified by the corporation as authorized
in this section. Such expenses (including
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<PAGE> 5
attorneys' fees) incurred by other employees and agents may be so paid
upon such terms and conditions, if any, as the board of directors deems
appropriate.
"(f) The indemnification and advancement of expenses provided
by, or granted pursuant to, the other subsections of this section shall
not be deemed exclusive of any other fights to which those seeking
indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action
in another capacity while holding such office.
"(g) A corporation shall have power to purchase and maintain
insurance on behalf of any person who 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 any liability asserted against him and incurred by
him in any such capacity, or arising out of his status as such, whether
or not the corporation would have the power to indemnify him against
such liability under this section.
"(h) For purposes of this section, references to 'the
corporation' shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such
constituent corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
enterprise, shall stand in the same position under this section with
respect to the resulting or surviving corporation as he would have with
respect to such constituent corporation if its separate existence had
continued.
"(i) For purposes of this section, references to 'other
enterprises' shall include employee benefit plans; references to
'fines' shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to 'serving at the
request of the corporation' shall include any service as a director,
officer, employee or agent of the corporation which imposes duties on,
or involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants or beneficiaries;
and a person who acted in good faith and in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner 'not
opposed to the best interests of the corporation' as referred to in
this section.
"(j) The indemnification and advancement of expenses provided
by, or granted pursuant to, this section shall, unless otherwise
provided when authorized or ratified, continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a
person.
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<PAGE> 6
"(k) The Court of Chancery is hereby vested with exclusive
jurisdiction to hear and determine all actions for advancement of
expenses or indemnification brought under this section or under any
bylaw, agreement, vote of shareholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees)."
Article VI of the Certificate of Incorporation of the Registrant
provides:
SECTION 6.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative or investigative, and whether formal or
informal (hereinafter a "proceeding"), by reason of the fact:
(a) that he or she, or a person of whom he or she is the legal
representative, is or was a director or Board-elected officer of the
Corporation, or
(b) that he or she, being at the time a director or
Board-elected officer of the Corporation, is or was serving at the
request of the Corporation as a director, trustee, officer, employee or
agent of another corporation or of a partnership, limited liability
company, joint venture, trust or other enterprise, including service
with respect to an employee benefit plan (collectively, "another
enterprise" or "other enterprise"),
whether either in case (a) or in case (b) the basis of such proceeding is
alleged action or inaction (x) in an official capacity as a director or officer
of the Corporation, or as a director, trustee, officer, employee or agent of
such other enterprise, or (y) in any other capacity related to the Corporation
or such other enterprise while so serving as a director, trustee, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted by Section 145 of the Delaware General Corporation
Law (or any successor provision or provisions) as the same exists or may
hereafter be amended (but, in the case of any such amendment, with respect to
alleged action or inaction occurring prior to such amendment, only to the
.extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including without limitation attorneys' fees and expenses,
judgments, fines, ERISA excise taxes or penalties and amounts paid in
settlement) actually and reasonably incurred by such person in connection
therewith. The persons indemnified by this Article VI are hereinafter referred
to as "indemnitees." Such indemnification as to such alleged action or inaction
shall continue as to an indemnitee who has after such alleged action or inaction
ceased to be a director or officer of the Corporation, or director, trustee,
officer, employee or agent of such other enterprise; and shall inure to the
benefit of the indemnitee's heirs, executors and administrators. Notwithstanding
the foregoing, except as may be provided in the Bylaws or by the Board of
Directors, the Corporation shall not indemnify any such indemnitee in connection
with a proceeding (or portion thereof) initiated by such indemnitee (but this
prohibition shall not apply to a counterclaim, cross-claim or third-party claim
brought by the indemnitee in any proceeding) unless such proceeding (or portion
thereof) was authorized by the Board of Directors. The right to indemnification
conferred in this Article VI: (i) shall be a contract right; (ii) shall not be
affected adversely as to any indemnitee by any amendment of this Certificate of
Incorporation with respect to any alleged action or inaction occurring prior to
such
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amendment; and (iii) shall, subject to any requirements imposed by law and
the Bylaws, include the right to be paid by the Corporation the expenses
(including attorneys' fees) incurred in defending any such proceeding in advance
of its final disposition.
SECTION 6.2. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article VI shall not be exclusive of any other right
which any person may have or hereafter acquire under this Certificate of
Incorporation, any statute, bylaw, agreement, vote of shareholders or
disinterested directors or otherwise. The Bylaws may contain such other
provisions concerning indemnification, including provisions specifying
reasonable procedures relating to and conditions to the receipt by indemnitees
of indemnification, provided that such provisions are not inconsistent with the
provisions of this Article VI.
SECTION 6.3. OTHER OFFICERS, EMPLOYEES AND AGENTS. The Corporation may,
to the extent authorized from time to time by the Board of Directors, grant
rights to indemnification, and to the advancement of expenses, to any other
officer, employee or agent of the Corporation (or any person serving at the
Corporation's request as a director, trustee, officer, employee or agent of
another enterprise) or to any person who is or was a director, officer, employee
or agent of any of the Corporation's affiliates, predecessor or subsidiary
corporations or of a constituent corporation absorbed by the Corporation in a
consolidation or merger or who is or was serving at the request of such
affiliate, predecessor or subsidiary corporation or of such constituent
corporation as a director, trustee, officer, employee or agent of another
enterprise, in each case as determined by the Board of Directors to the fullest
extent of the provisions of this Article VI in cases of the indemnification and
advancement of expenses of directors and Board-elected officers of the
Corporation, or to any lesser extent (or greater extent, if permitted by law)
determined by the Board of Directors. If so indemnified, such persons shall be
included in the term "indemnitee" or "indemnitees" as used in this Article VI
and in the Bylaws of the Corporation.
In addition, Article VII of the Bylaws of Registrant provides:
SECTION 7.01. INDEMNIFICATION PROVISIONS IN CERTIFICATE OF
INCORPORATION. The provisions of this Article VII are intended to supplement
Article VI of the Certificate of Incorporation pursuant to Sections 6.2 and 6.3
thereof. To the extent that this Article VII contains any provisions
inconsistent with said Article VI, the provisions of the Certificate of
Incorporation shall govern. Terms defined in such Article VI shall have the same
meaning in this Article VII.
SECTION 7.02. INDEMNIFICATION OF OTHERS. The Corporation may indemnify
and advance expenses to its other officers, employees and agents to the same
extent as to its directors and Board-elected officers, as set forth in the
Certificate of Incorporation and in this Article VII of the Bylaws of the
Corporation, and, if so indemnified, such persons shall be included in the term
"indemnitee" or "indemnitees" as used in this Article VII of the Bylaws.
SECTION 7.03. UNDERTAKINGS FOR ADVANCES OF EXPENSES. If and to the
extent the Delaware General Corporation Law requires, an advancement by the
Corporation of expenses incurred by an indemnitee pursuant to clause (iii) of
the last sentence of Section 6.1 of the
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Certificate of Incorporation (hereinafter an advancement of expenses") shall be
made only upon delivery to the Corporation of an undertaking (hereinafter an
"undertaking"), by or on behalf of such indemnitee, to repay all amounts so
advanced if it shall ultimately be determined by final judicial decision from
which there is no further right to appeal (hereinafter a "final adjudication")
that such indemnitee is not entitled to be indemnified for such expenses under
Article VI of the Certificate of Incorporation or otherwise.
SECTION 7.04. CLAIMS FOR INDEMNIFICATION. If a claim for
indemnification under Section 6.1 of the Certificate of Incorporation is not
paid in full by the Corporation within 60 days after it has been received in
writing by the Corporation, except in the case of a claim for an advancement of
expenses, in which case the applicable period shall be 20 days, the indemnitee
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If the indemnitee is successful in whole or in part
in any such suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the indemnitee
shall be entitled to be paid also the expense of prosecuting or defending such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce a right to an advancement of expenses) it shall be a defense that, and
in any suit by the Corporation to recover an advancement of expenses pursuant to
the terms of an undertaking the Corporation shall be entitled to recover such
expenses only upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in Section 145 of the Delaware General
Corporation Law (or any successor provision or provisions). Neither the failure
of the Corporation (including the Board of Directors, independent legal counsel,
or its shareholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
Section 145 of the Delaware General Corporation Law (or any successor provision
or provisions), nor an actual determination by the Corporation (including the
Board of Directors, independent legal counsel, or its shareholders) that the
indemnitee has not met such applicable standard of conduct, shall create a
presumption that the indemnitee has not met the applicable standard of conduct
or, in the case of such a suit brought by the indemnitee, be a defense to such
suit. In any suit brought by the indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not entitled to be
indemnified, or to have or retain such advancement of expenses, under Article VI
of the Certificate of Incorporation or this Article VII or otherwise, shall be
on the Corporation.
SECTION 7.05. INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and any director, trustee, officer, employee or agent
of the Corporation or another enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General Corporation
Law.
SECTION 7.06. SEVERABILITY. In the event that any of the provisions of
this Article VII (including any provision within a single section, paragraph or
sentence) is held by a court of competent jurisdiction to be invalid, void or
otherwise unenforceable, the remaining provisions are severable and shall remain
enforceable to the full extent permitted by law.
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As permitted by applicable statutes, the Registrant has purchased a
standard directors' and officers' liability policy that will, subject to certain
limitations, indemnify the Registrant and its officers and directors for damages
they become legally obligated to pay as a result of any negligent act, error, or
omission committed by directors or officers while acting in their capacities as
such.
The indemnification provisions in the Company's bylaws may be
sufficiently broad to permit indemnification of the Registrant's officers and
directors for liabilities arising under the Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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ITEM 8. EXHIBITS
The exhibits included as part of this registration statement are as
follows:
<TABLE>
<CAPTION>
Exhibit Number Description
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<S> <C>
4.1 Registrant's Certificate of Incorporation, as amended (included
as Exhibit 3.1 to the Registrant's Registration Statement on
Form S-4 (Registration No. 333-19125) and incorporated herein by
reference).
4.2 Registrant's Bylaws, as amended (included as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-4 (Registration
No. 333-19125) and incorporated herein by reference).
5 Opinion of Alston & Bird LLP.
23.1 Consent of Alston & Bird LLP (included in Exhibit 5 above).
23.2 Consents of Ernst & Young LLP and Arthur Andersen LLP.
24 Power of Attorney (included on signature page of this
Registration Statement).
</TABLE>
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;
(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 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;
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provided, however, that paragraphs (a)(1)(i) and (a)(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 with or
furnished to the Commission by the Registrant pursuant to Section 13 or Section
15(d) of the Exchange Act that are incorporated by reference in this
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 registration statement relating to the securities being 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, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in 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.
(c) 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 Registrant's articles of incorporation,
bylaws, 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.
(signatures on following page)
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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 Norcross, State of Georgia, on this 21st day of
July, 1997.
VAXCEL, INC.
By: /s/ Paul J. Wilson III
--------------------------
Paul J. Wilson III
President and Chief Executive Officer
Know All Men By These Presents, that each person whose signature
appears below constitutes and appoints Paul J. Wilson III and Mark W. Reynolds,
and each of them, his or her true and lawful attorneys-in-fact and agents, 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 to
file the same, with all 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 and necessary to be done, as
fully and to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or his or her substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
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 Capacity Date
--------- -------- ----
/s/Paul J. Wilson III President and Chief Executive Officer July 21, 1997
- ----------------------- (Principal Executive Officer)
Paul J. Wilson III
/s/ Mark W. Reynolds Chief Financial Officer and Secretary July 21, 1997
- ----------------------- (Principal Financial Officer and
Mark W. Reynolds Principal Accounting Officer)
/s/ Jack L. Bowman Director July 21, 1997
- -----------------------
Jack L. Bowman
II-11
<PAGE> 13
/s/ Lyle A. Hohnke Director July 21, 1997
- -------------------------------
Lyle A. Hohnke
/s/ Jack J. Luchese Director July 21, 1997
- -------------------------------
Jack J. Luchese
/s/ Herbert H. McDade, Jr. Director July 21, 1997
- -------------------------------
Herbert H. McDade, Jr.
/s/ Paul J. Wilson III Director July 21, 1997
- -------------------------------
Paul J. Wilson III
II-12
<PAGE> 14
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
<TABLE>
<CAPTION>
Exhibit Number Description
-------------- -----------
<S> <C>
4.1 Registrant's Certificate of Incorporation, as amended (included
as Exhibit 3.1 to the Registrant's Registration Statement on
Form S-4 (Registration No. 333-19125) and incorporated herein by
reference).
4.2 Registrant's Bylaws, as amended (included as Exhibit 3.2 to the
Registrant's Registration Statement on Form S-4 (Registration
No. 333-19125) and incorporated herein by reference).
5 Opinion of Alston & Bird LLP.
23.1 Consent of Alston & Bird LLP (included in Exhibit 5 above).
23.2 Consents of Ernst & Young LLP and Arthur Andersen LLP.
24 Power of Attorney (included on signature page of this
Registration Statement).
</TABLE>
<PAGE> 1
EXHIBIT 5
Exhibit 5
Opinion of Alston & Bird LLP
<PAGE> 2
[Letterhead of Alston & Bird LLP]
July 21, 1997
Vaxcel, Inc.
154 Technology Parkway
Technology Park/Atlanta
Norcross, Georgia 30092
Re: Form S-8 Registration Statement of Vaxcel, Inc.-- Vaxcel, Inc.
1993 Stock Option Plan and
Vaxcel, Inc. Replacement Stock Option Plan for Zynaxis Options
Ladies and Gentlemen:
This opinion is given in connection with the filing by Vaxcel, Inc., a
Delaware corporation (the "Company"), of a Registration Statement on Form S-8
(the "Registration Statement") with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, in connection with the registration of
up to 1,015,480 shares of the $.001 par value Common Stock of the Company (the
"Shares") to be issued pursuant to the Vaxcel, Inc. 1993 Stock Option Plan and
the Vaxcel, Inc. Replacement Stock Option Plan for Zynaxis Options (the
"Plans").
We have examined such corporate records and documents as we deemed
relevant and necessary to enable us to give the opinion set forth herein,
including the Certificate of Incorporation and Bylaws of the Company, as
amended, and resolutions of the Board of Directors of the Company. For
purposes of this opinion, we assume that all Shares will be issued in
accordance with the Plans.
In conducting our examination we assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such documents.
Based upon the foregoing, we are of the opinion that the Shares, when
issued in accordance with the terms and conditions of the Plans, will be duly
authorized, legally issued, fully paid and nonassessable under the Delaware
General Corporation Law as in effect on this date.
We hereby consent to the use of this opinion as an Exhibit to the
Registration Statement.
ALSTON & BIRD LLP
By: /s/ George M. Maxwell, Jr.
------------------------------
George M. Maxwell, Jr.
<PAGE> 1
EXHIBIT 23.2
Exhibit 23.2
Consents of Independent Public Accountants and Independent Auditors
<PAGE> 2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Vaxcel, Inc. 1993 Stock Option Plan and the Vaxcel,
Inc. Replacement Stock Option Plan for Zynaxis Options of our report dated
February 14, 1997, with respect to the financial statements of Vaxcel, Inc.
included in the Registrant's registration statement on Form S-4 (Registration
No. 333-19125) filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
/s/ Ernst & Young LLP
-------------------------
Ernst & Young LLP
Atlanta, Georgia
July 15, 1997
<PAGE> 3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated January
21, 1997 with respect to the consolidated financial statements of Zynaxis, Inc.
and subsidiaries for the year ended December 31, 1996 included in Vaxcel, Inc.'s
Form S-4 Registration Statement and to all references to our Firm included in
this Form S-8 Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
Philadelphia, Pa.,
July 18, 1997
<PAGE> 4
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 Registration Statement of our report dated November
30, 1995 with respect to the financial statements of Secretech, Inc. for the
year ended June 30, 1995 and for the period from inception (August 22, 1989) to
June 30, 1995 included in Vaxcel, Inc.'s Form S-4 Registration Statement and to
all references to our Firm included in this Form S-8 Registration Statement.
/s/ Arthur Andersen LLP
-----------------------
ARTHUR ANDERSEN LLP
Philadelphia, Pa.,
July 18, 1997
<PAGE> 5
CONSENT OF INDEPENDENT AUDITORS OF SECRETECH, INC.
We consent to the incorporation by reference in this Registration Statement
(Form S-8) pertaining to the Vaxcel, Inc. 1993 Stock Option Plan and the Vaxcel,
Inc. Replacement Stock Option Plan for Zynaxis Options of our report dated
August 5, 1994 with respect to the financial statements of Secretech, Inc.
included in the Registrant's registration statement on Form S-4 (Registration
No. 333-19125) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
---------------------
ERNST & YOUNG LLP
Birmingham, Alabama
July 15, 1997
