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As filed with the Securities and Exchange Commission on December 1, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------
COMMONWEALTH BIOTECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
Virginia 56-1641133
(State or other jurisdiction of (I.R.S. Employer
incorporation of organization) Identification No.)
601 Biotech Drive
Richmond, Virginia 23235
(Address of Principal Executive Offices)
(ZIP Code)
COMMONWEALTH BIOTECHNOLOGIES, INC. 2000 STOCK INCENTIVE PLAN
(Full title of the plan)
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<S> <C>
Richard J. Freer, Ph.D., Chairman With copies to:
Commonwealth Biotechnologies, Inc.
601 Biotech Drive Bradley A. Haneberg, Esq.
Richmond, Virginia 23235 LeClair Ryan, A Professional Corporation
(Name and address of agent for service) 707 East Main Street, 11th Floor
Richmond, Virginia 23219
(804) 648-3820 (804) 783-2003
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
Title of Securities Amount to be Proposed Maximum Offering Proposed Maximum Aggregate Amount of
to be Registered Registered (1) Price Per Share Offering Price (2) Registration Fee
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 360,000 $4.97 $1,789,200 $473
---------------------------------------------------------------------------------------------------------------------
Total 360,000 $4.97 $1,789,200 $473
---------------------------------------------------------------------------------------------------------------------
</TABLE>
----------------
(1) Pursuant to Rule 416, this Registration Statement shall be deemed to cover
such additional shares of Registrant's common stock as may become issuable
pursuant to the anti-dilution provisions of the 2000 Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended, based on the average of the high and low prices for
registrant's common stock reported on the Nasdaq SmallCap Market on
November 30, 2000.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission by Commonwealth
Biotechnologies, Inc. (the "Company") are incorporated herein by reference as of
the dates thereof: (1) the Company's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1999; (2) the Company's Quarterly Report on Form 10-QSB
for the quarter ended March 31, 2000, (3) the Company's Quarterly Report on Form
10-QSB for the quarter ended June 30, 2000, (4) the Company's quarterly report
on Form 10-QSB for the quarter ended September 30, 2000, (5) the Company's
Current Report on Form 8-K dated September 28, 2000, (6) the Company's Current
Report on Form 8-K dated March 24, 2000, and (7) the description of the Common
Stock contained in Item 1 of the Company's Registration Statement on Form 8-A
filed with the Commission on October 7, 1997.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
as amended, subsequent to 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 herein and to be a part
hereof from the date of the filing of such reports and 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 other subsequently filed document which also is
incorporated or 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.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
In accordance with Virginia law, Article VI of the Company's Articles of
Incorporation provides as follows:
The Corporation shall indemnify (a) any person who was, is or may become a
party to any proceeding, including a proceeding brought by a shareholder in the
right of the Corporation or brought by or on behalf of the shareholders of the
Corporation, by reason of the fact that he is or was a director or officer of
the Corporation, or (b) any director or officer who is or was serving at the
request of the Corporation as a director, trustee, partner or officer of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against any liability incurred by him in connection with such
proceeding unless he engaged in willful misconduct or a knowing violation of
criminal law. A person is considered to be serving an employee benefit plan at
the Corporation's request if his duties to the Corporation also impose duties
on, or otherwise involve securities by, him to the plan or to participants in or
beneficiaries of the plan. The Board of Directors is hereby empowered, by a
majority vote of a quorum of disinterested Directors, to enter into a contract
to indemnify any Director or officer in respect of any proceedings arising from
any act or omission, whether occurring before or after the execution of such
contract.
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EXHIBITS
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<CAPTION>
Exhibit
Number Description of Exhibit
------- -----------------------
<S> <C>
4.1 Articles of Incorporation of the Company (1)
4.2 Bylaws of the Company (1)
4.3 Form of Common Stock Certificate (1)
5.1 Opinion of LeClair Ryan, A Professional Corporation (2)
23.1 Consent of LeClair Ryan, A Professional Corporation (included in Exhibit 5.1)
23.2 Consent of McGladrey & Pullen, LLP (2)
24.1 Powers of Attorney (included in Part II of this Registration Statement)
99.1 Commonwealth Biotechnologies, Inc. 2000 Stock Incentive Plan (2)
</TABLE>
-----------------
(1) Incorporated by reference to the Company's Registration Statement on Form
SB-2, Registration No. 333-31731.
(2) Filed herewith.
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 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 the 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 the
high end of the 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 additional or changed material information
on the plan of distribution;
Notwithstanding the foregoing, however, the undertakings included in
paragraphs (a)(1)(i) and (a)(1)(ii) of this Item do not apply if the information
required in a post-effective amendment is incorporated by reference from
periodic reports filed by the Company under the Exchange Act.
(2) That, for the purpose of determining any liability under the Securities
Act, treat each post-effective amendment as a new registration statement of the
securities offered, and the offering of the securities at that time to be the
initial bona fide offering.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered that remain unsold at the end of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
3
<PAGE>
registrant's annual report pursuant to Section 13(a) or 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Richmond, Commonwealth of Virginia on December 1,
2000.
COMMONWEALTH BIOTECHNOLOGIES, INC.
By: /s/ Richard J. Freer, Ph.D.
--------------------------------------
Richard J. Freer, Ph.D., Chairman
Each person whose signature appears below on this Registration Statement
hereby constitutes and appoints Richard J. Freer, Ph.D. and Robert B. Harris,
Ph.D., and each of them, with full power to act without the other, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities (until revoked by writing) to sign any and all amendments to this
Registration Statement (including post-effective amendments and amendments
thereto) and any registration statement relating to the same offering as this
Registration Statement that is to be effective upon filing pursuant to Rule
462(b) under the Securities Act, 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, ratifying and confirming all that said attorneys-in-fact and agents or
any of them, or their or his substitute or substitutes, 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 below by the following persons in the capacities and
on the dates indicated.
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<CAPTION>
Name Title Date
---- ----- ----
<S> <C>
/s/ Richard J. Freer, Ph.D. Chairman of the Board December 1, 2000
--------------------------- and Director
Richard J. Freer, Ph.D. (Principal Executive Officer)
/s/ Robert B. Harris, Ph.D. President and Director December 1, 2000
---------------------------
Robert B. Harris, Ph.D.
/s/ James H. Brennan Controller (Principal Financial December 1, 2000
-------------------- and Accounting Officer)
James H. Brennan
/s/ Thomas R. Reynolds Senior Vice President, Secretary December 1, 2000
---------------------- and Director
Thomas R. Reynolds
Director December 1, 2000
------------------
George F. Allen
</TABLE>
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<TABLE>
<S> <C>
Director December 1, 2000
--------------------------
Dr. Raymond H. Cypess
/s/ L. McCarthy Downs, III Director December 1, 2000
--------------------------
L. McCarthy Downs, III
</TABLE>
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