<PAGE>
As filed with the Securities and Exchange Commission on September 24, 1999
REGISTRATION NO. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
----------------------
ARTIFICIAL LIFE, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3253298
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Four Copley Place, Suite 102
Boston, Massachusetts 02116
(Address of Principal Executive Offices)(Zip code)
ARTIFICIAL LIFE, INC. 1998 EQUITY INCENTIVE PLAN
(Full title of the plan)
Eberhard Schneburg
President and CEO
ARTIFICIAL LIFE, INC.
Four Copley Place, Suite 102
Boston, Massachusetts 02116
(617) 266-5542
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed
Title of Amount to be maximum Amount of
securities to be registered registered (1) aggregate registration fee
offering price (2)
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, $0.01 par value 2,700,000 $30,723,373.89 $9,064.00
=====================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $0.01 per share ("Common
Stock"), stated above consists of the aggregate number of shares which may
be sold upon the exercise of options which have been granted and/or may
hereafter be granted under the Artificial Life, Inc. 1998 Equity Incentive
Plan (the "Plan"). The maximum number of shares which may be sold upon the
exercise of such options granted under the Plan are subject to adjustment
in accordance with certain anti-dilution and other provisions of said Plan.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares stated above, an indeterminate number of
shares which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: (i) in the case of shares of Common Stock which
may be purchased upon exercise of outstanding options, the fee is
calculated on the basis of the price at which the options may be exercised;
and (ii) in the case of shares of Common Stock for which options have not
yet been granted and the option price of which is therefore unknown, the
fee is calculated on the basis of the average of the high and low sale
prices per share of the Common Stock on the National Market System of the
National Association of Securities Dealers Automated Quotation System
(NASDAQ) as of a date (September 22, 1999) within 5 business days prior to
filing this Registration Statement.
================================================================================
<PAGE>
EXPLANATORY NOTE
----------------
As permitted by the rules of the Securities and Exchange Commission, the
information specified by Part I of Form S-8 has been omitted from this
Registration Statement on Form S-8 for offers of Common Stock pursuant to the
Plan.
<PAGE>
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
- -------------------------------------------------------
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998, as filed with the Commission on March 31, 1999.
(b) (i) The Registrant's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1999, as filed with the Commission on May 17, 1999.
(ii) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1999, as filed with the Commission on August 13, 1999.
(c) The description of the Common Stock of the Registrant contained in the
Registrant's Registration Statement on Form 8-A, filed under the Securities
Exchange Act of 1934 on November 18, 1998, including any amendment or report
filed for the purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 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 herein
by reference and to be part hereof from the date of filing of such reports and
documents (such documents and the documents enumerated above, being hereinafter
referred to as "Incorporated Documents"). Any statement contained herein or in
an Incorporated Document deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document 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 hereof.
Item 4. Description of Securities.
- ---------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- ----------------------------------------------
The validity of the issuance of the shares of Common Stock registered under
this Registration Statement has been passed upon for the Company by Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. Members
and certain affiliates of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
own options to purchase an aggregate of approximately 100,000 shares of Common
Stock of the Company, which options are immediately exercisable. These shares
are subject to lock-up agreements which terminate on December 17, 1999.
<PAGE>
Item 6. Indemnification of Directors and Officers.
- --------------------------------------------------
The Registrant's Restated Certificate of Incorporation (the
"Certificate of Incorporation") provides that the Registrant shall indemnify to
the fullest extent authorized by the Delaware General Corporation Law ("DGCL"),
each person who is involved in any litigation or other proceeding because such
person is or was director or officer of the Registrant or is or was serving as
an officer or director of another entity at the request of the Registrant,
against all expense, loss or liability reasonably incurred or suffered in
connection therewith. The Certificate of Incorporation provides that the right
to indemnification includes the right to be paid expenses incurred in defending
any proceeding in advance of its final disposition, provided, however, that such
advance payment will only be made upon delivery to the Registrant of an
undertaking, by or on behalf of the director or officer, to repay all amounts so
advanced if it is ultimately determined that such director is not entitled to
indemnification. If the Registrant does not pay a proper claim for
indemnification in full within 60 days after a written claim for such
indemnification is received by the Registrant, the Certificate of Incorporation
and the Registrant's Bylaws authorize the claimant to bring an action against
the Registrant and prescribe what constitutes a defense to such action.
Section 145 of the DGCL permits a corporation to indemnify any director
or officer of the corporation against expense (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with any action, suit or proceeding brought by reason of the fact
that such person is or was a director or officer of the corporation, if such
person acted in good faith and in a manner that 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, if he or she had no reason to believe his or
her conduct was unlawful. In a derivative action, (i.e., one brought by or on
behalf of the corporation), indemnification may be provided only for expenses
actually and reasonably incurred by an director or officer in connection with
the defense or settlement of such an action or suit if such person acted in good
faith and in a manner that he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, except that no
indemnification shall be provided if such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that the court in which
the action or suit was brought shall determine that the defendant is fairly and
reasonably entitled to indemnity for such expenses despite such adjudication of
liability.
Pursuant to Section 102(b)(7) of the DGCL, Article Tenth of the
Certificate of Incorporation eliminates the liability of a director to the
Registrant or its stockholders for monetary damages for such a breach of
fiduciary duty as a director, except for liabilities arising (i) from any breach
of the director's duty of loyalty to the Registrant or its stockholders, (ii)
from acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) from
any transaction from which the director derived an improper personal benefit.
The Registrant intends to obtain insurance policies insuring the
directors and officers of the Registrant against certain liabilities that they
may incur in their capacity as directors and officers. Under such policies, the
insurers, on behalf of the Registrant, may also pay amounts for which the
Registrant has granted indemnification to the directors or officers.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
- --------------------------------------------
Not applicable.
Item 8. Exhibits.
- -----------------
(4.1) Form of Common Stock Certificate (Incorporated herein by
reference to Exhibit 4.1 to Registrant's Registration
Statement on Form S-1, as amended, No. 333-64619).
(4.2) Restated Certificate of Incorporation (Incorporated herein by
reference to Exhibit 3.2 to Registrant's Registration
Statement on Form S-1, as amended, No. 333-64619).
(4.3) Restated By-Laws (Incorporated herein by reference to Exhibit
3.4 to Registrant's Registration Statement on Form S-1, as
amended, No. 333-64619).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
as to the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of Wolf & Company, P.C.
(24) Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
(99.1) 1998 Equity Incentive Plan (Incorporated herein by reference
to Exhibit 10.10 to Registrant's Registration Statement on
Form S-1, as amended, No. 333-64619).
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 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. 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%
3
<PAGE>
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 (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on Form S-3 or Form S-8, and
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 that are
incorporated by reference in this 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.
(b) 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 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 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
<PAGE>
SIGNATURES
The Registrant. 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 the City of Boston, State of Massachusetts, on September 23,
1999.
ARTIFICIAL LIFE, INC.
By /s/ Eberhard Schoneburg
-------------------------------------
Eberhard Schoneburg
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints Eberhard
Schoneburg and Robert Pantano, and each of them, his or her true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution
in each of them, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 of Artificial Life, Inc., 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 or necessary to be done in or about the premises, as full 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 any of 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 by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Eberhard Schoneburg President, Chief Executive Officer September 23, 1999
- -------------------------- and Director
Eberhard Schoneburg
/s/ Robert Pantano Chief Financial Officer September 23, 1999
- --------------------------
Robert Pantano
/s/ Bruno Gabriel Director September 23, 1999
- --------------------------
Bruno Gabriel
/s/ Elmar Wohlgensinger Director September 23, 1999
- --------------------------
Elmar Wohlgensinger
/s/ Hartmut Bergmann Director September 23, 1999
- --------------------------
Hartmut Bergmann
</TABLE>
5
<PAGE>
ARTIFICIAL LIFE, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
(4.1) Form of Common Stock Certificate (Incorporated herein by
reference to Exhibit 4.1 to Registrant's Registration Statement
on Form S-1, as amended, No. 333-64619).
(4.2) Restated Certificate of Incorporation (Incorporated herein by
reference to Exhibit 3.2 to Registrant's Registration Statement
on Form S-1, as amended, No. 333-64619).
(4.3) Restated By-Laws (Incorporated herein by reference to Exhibit 3.4
to Registrant's Registration Statement on Form S-1, as amended,
No. 333-64619).
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as
to the legality of shares being registered.
(23.1) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in opinion of counsel filed as Exhibit 5).
(23.2) Consent of Wolf & Company, P.C.
(24) Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
(99.1) 1998 Equity Incentive Plan (Incorporated herein by reference to
Exhibit 10.10 to Registrant's Registration Statement on Form S-1,
as amended, No. 333-64619).
<PAGE>
EXHIBIT 5
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
One Financial Center, Boston, Massachusetts 02111
BOSTON WASHINGTON RESTON, VIRGINIA
September 23, 1999
Artificial Life, Inc.
Four Copley Place, Suite 102
Boston, Massachusetts 02116
Ladies and Gentlemen:
We have acted as counsel to Artificial Life, Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement"), pursuant to which the Company is registering the
issuance under the Securities Act of 1933, as amended, of a total of 2,700,000
shares (the "Shares") of its common stock, $.01 par value per share (the "Common
Stock"). This opinion is being rendered in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration
Statement.
In connection with this opinion, we have examined the Company's Amended and
Restated Certificate of Incorporation and Amended and Restated Bylaws, both as
currently in effect; such other records of the corporate proceedings of the
Company and certificates of the Company's officers as we have deemed relevant;
and the Registration Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures, the
legal capacity of 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 copies.
Based upon the foregoing, we are of the opinion that (i) the Shares have
been duly and validly authorized by the Company and (ii) the Shares, when sold,
will have been duly and validly issued, fully paid and non-assessable shares of
the Common Stock, free of preemptive rights.
Our opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign
jurisdiction.
<PAGE>
September 23, 1999
Page 2
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
----------------------------------
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
<PAGE>
EXHIBIT 23.2
WOLF One International Place
COMPANY, P.C. Boston, Massachusetts 02110-9801
Certified Public Accountants 617/439-9700 . fax 617/439-0476
and Business Consultants
1500 Main Street, Suite 1908
Springfield, Massachusetts 01115
413/747-9042 . fax 413/739-5149
www.wolfandco.com
- --------------------------------------------------------------------------------
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to incorporation by reference in this Registration Statement of
Artificial Life, Inc. on Form S-8 of our report dated March 14, 1999, on the
consolidated balance sheets of Artificial Life, Inc. as of July 3, 1997 and
December 31, 1997 and 1998, and the related consolidated statements of
operations, changes in stockholders' equity and cash flows for the year ended
December 31, 1996, the periods ended July 3, 1997 and December 31, 1997 and the
year ended December 31, 1998, which report appears in the Annual Report on
Form 10-K of Artificial Life, Inc.
/s/ Wolf & Company, P.C.
---------------------------------
Wolf & Company, P.C.
Boston, Massachusetts
September 23, 1999
