<PAGE>
As filed with the Securities and Exchange Commission on February 9, 1996.
Registration No. ________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOSPHERICS INCORPORATED
--------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 52-0849320
- ------------------------ ----------------------
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
12501 Indian Creek Court, Beltsville, Maryland 20705
- -----------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
BIOSPHERICS INCORPORATED
NONQUALIFIED STOCK OPTION PLAN
------------------------------
(Full title of the plan)
Name, address and telephone Please send copies
number of agent for service: of all communications to:
Dr. Gilbert V. Levin James E. Baker, Jr., Esq.
President Smith, Somerville & Case, L.L.C.
Biospherics Incorporated 100 Light Street, 5th Floor
12501 Indian Creek Court Baltimore, Maryland 21202
Beltsville, Maryland 20705 (410) 727-1164
(301) 419-3900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share (1) Price (1) Fee (1)
- ---------- ---------- -------------- --------- -------------
<S> <C> <C> <C> <C>
Common Stock, 400,000 $10.875 $4,350,000 $1,500.00
par value shares
$.01 per share
</TABLE>
(1) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 and based on a price of $10.875 per share, the average of
the high and low prices of the Common Stock of registrant on February 5, 1996,
as reported by NASDAQ.
<PAGE>
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement and made a part hereof:
(1) The Company's annual report on Form 10-KSB for the fiscal year
ended December 31, 1994, filed with the Securities and Exchange Commission
pursuant to Section 13 of the Securities Exchange Act of 1934.
(2) All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 since the end of the fiscal year
covered by the annual report referred to in (1) above.
(3) The description of the Company's common stock contained in the
registration statement filed by the Company under the Securities Exchange Act of
1934.
(4) All documents subsequently filed by the Company 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 have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
The Common Stock to be offered has been registered under Section 12 of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's charter and by-laws provide that each director and each
officer of the Company shall be indemnified by the Company to the fullest extent
permitted by applicable law against all liability and loss suffered and expenses
reasonably incurred by such person in connection with the defense of any action,
suit or proceeding (including any appeal therein) in which they or any of them
are made parties or a party by reason of being or having been directors or
officers.
Under the laws of the State of Delaware 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
2
<PAGE>
proceeding, whether civil, criminal, administrative or investigative (other than
action by or in 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 another corporation at the request of the corporation, against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement,
actually and reasonably incurred by him 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 a criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
nolo contendere plea, does 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 lawful. Indemnification of expenses (including attorneys' fees) is
allowed in derivative actions except no indemnification is permitted in respect
of any claim, issue or matter as to which any such person has been adjudged to
be liable unless the trial court decides that indemnification is proper. To the
extent any such person succeeds on the merits or otherwise, he shall be
indemnified against expenses (including attorneys' fees). A determination that
the person to be indemnified met the applicable standard of conduct is made by
the board of directors by majority vote of a quorum consisting of directors not
a party to such action, suit or proceeding or, if a quorum is not obtainable or
a disinterested quorum so directs, by independent legal counsel or by the
stockholders. Expenses, including attorneys' fees, may be paid in advance upon
receipt of undertakings to repay by the director or officer if it is ultimately
determined that he is not entitled to be indemnified by the corporation. The
right of indemnification and advancement of expenses continues as to any person
who has ceased to be a director, officer or agent unless otherwise provided in
the authorization.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Affiliates of the Company may not use this Registration Statement for
reoffers or resales of shares of Common Stock acquired under the plan. Such
affiliates may offer or resell their shares of Common Stock only in compliance
with Rule 144 of the Securities Act of 1933 (the "1933 Act"), pursuant to a
separate prospectus or pursuant to an exemption from registration under the 1933
Act.
3
<PAGE>
ITEM 8. EXHIBITS
Exhibit No. Description of Exhibits
- ----------- -----------------------
4 Biospherics Incorporated Nonqualified Stock Option Plan
5 Opinion of Smith, Somerville & Case, L.L.C.
24 Consent of Smith, Somerville & Case, L.L.C.
(contained in Exhibit 5)
The Biospherics Incorporated Nonqualified Stock Option Plan is not
subject to compliance with ERISA.
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 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.
(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 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.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or
4
<PAGE>
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.
5
<PAGE>
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 the City of Baltimore, State of Maryland, on February 5, 1996.
BIOSPHERICS INCORPORATED
By:\s\ Gilbert V. Levin
--------------------------------
Gilbert V. Levin, President and
Director
By:\s\ Arthur S. Locke, III
--------------------------------
Arthur S. Locke, Chief Financial
Officer
6
<PAGE>
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\ M. Karen Levin Director February 1, 1996
- ----------------------
\s\ Anne S. MacLeod Director February 5, 1996
- ----------------------
\s\ A. Bruce Cleveland Director February 5, 1996
- ----------------------
\s\ George S. Jenkins Director February 6, 1996
- ----------------------
7
<PAGE>
Exhibit 4
BIOSPHERICS INCORPORATED
NONQUALIFIED STOCK OPTION PLAN
February 7, 1996
Part I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
THIS DOCUMENT CONSTITUTES PART OF A PROSPECTUS COVERING SECURITIES
THAT WILL BE REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "SECURITIES ACT").
This document, and the Form S-8 registration statement, including the
documents incorporated by reference in the Form S-8 registration statement,
constitute the prospectus (the "Prospectus") satisfying the requirements of
Securities Act Section 10(a) pursuant to Rule 428. The following statements
include summaries of certain provisions of the Biospherics Incorporated
Nonqualified Stock Option Plan (the "Plan"). These statements do not purport to
be complete and are qualified in their entirety by reference to the provisions
of the Plan, a copy of which is attached as an exhibit to the Form S-8
registration statement and is incorporated herein by reference.
Item 1. Plan Information
(a) GENERAL PLAN INFORMATION
Registrant: BIOSPHERICS INCORPORATED (the "Company")
Title of Plan: BIOSPHERICS INCORPORATED NONQUALIFIED
STOCK OPTION PLAN
This information relates to shares of common stock, $.01 par value per
share (the "Common Stock"), which may be issued from time to time by the Company
under the Plan.
The purpose of the Plan is to advance the interest of the Company by
providing selected key employees of the Company with an additional incentive to
promote its success and to encourage them to remain in the employ of the
Company.
The Plan, unless sooner terminated at the discretion of the Board of
Directors of the Company (the "Directors"), shall terminate at the close of
business on May 14, 1997. Options to purchase shares of Common Stock which are
outstanding on the date of such termination shall not be
8
<PAGE>
affected by such termination and shall expire in accordance with their terms.
The Plan is not subject to any provisions of the Employee Retirement
Income Security Act of 1974.
Participants may obtain additional information concerning the Plan by
contacting Richard C. Levin, Vice President, Biospherics Incorporated, 12501
Indian Creek Court, Beltsville, Maryland 20705, telephone number (301) 419-3900.
To the extent necessary, Mr. Levin will forward appropriate inquiries to the
Compensation Committee which also acts as a stock option committee (the
"Committee") as set forth in the Plan. The Plan is administered by the
Committee which is comprised of two or more Directors who qualify as
"disinterested persons" under applicable law. The members of the Committee
serve at the discretion of the Directors. The Committee may establish such
rules, regulations or other provisions not inconsistent with the provisions of
the Plan as it may deem advisable.
(b) SECURITIES TO BE OFFERED
Title of and amount of securities to be offered pursuant to the Plan:
Up to 2,200,000 shares of $.01 par value Common Stock; only 400,000 of such
shares of Common Stock are being registered pursuant to the Form S-8
registration statement and are covered by this Prospectus.
(c) EMPLOYEES WHO MAY PARTICIPATE IN THE PLAN
All employees of the Company are eligible to participate in the Plan.
The Committee has the sole and exclusive right to select those employees who
will participate in the Plan and receive options to purchase the Common Stock
thereunder ("Options").
(d) ISSUANCE OF SECURITIES PURSUANT TO THE PLAN
Options may be granted by the Committee, in its discretion, at varying
exercise prices which may not be less than 50% of the fair market value of the
underlying shares of Common Stock on the date the Option is granted.
The term of each Option shall be fixed by the Committee in its
discretion provided that the term shall never be more than five years and one
month from the date on which the Option is granted.
Options may be subject to such terms and conditions in addition to
those set forth in the Plan as are determined from time to time by the
Committee. The Plan further provides that Options outstanding at the time of
any change of control of the Company will become immediately exercisable
notwithstanding any contrary vesting provisions contained therein.
9
<PAGE>
Upon exercise of an Option, the purchase price for the underlying
shares of Common Stock may be paid, at the election of the employee exercising
the Option, in cash, by the delivery of shares of Common Stock having a fair
market value equal to the purchase price or partly in cash and partly in shares
of such Common Stock. Fair market value for this purpose will be determined
based on the closing price of the shares of Common Stock on the business day
immediately preceding the day on which the Option is exercised. Shares of
Common Stock obtained by the exercise of an Option may not be used as payment
for the purchase of additional shares of Common Stock under the Plan unless more
than six months have elapsed since such shares were first acquired.
All shares of Common Stock issued under the Plan shall be issued by
the Company.
(e) RESALE RESTRICTIONS
Affiliates of the Company, as defined in Rule 405 of the rules adopted
pursuant to the Securities Act of 1933 (the "Act"), may not use this Prospectus
for reoffers and resales of shares of Common Stock acquired under this Plan.
Such affiliates may offer or resell their shares of Common Stock only in
compliance with Rule 144 of the Act, pursuant to a separate prospectus or
pursuant to an exemption from registration under the Act.
(f) TAX EFFECTS OF PLAN PARTICIPATION
Under existing Federal income tax provisions, an employee who receives
an Option will not normally recognize any income, nor will the Company normally
receive any deduction, in the year the Option is granted.
When an Option is exercised, the employee will normally recognize
ordinary income equal to the difference between the aggregate purchase price of
the shares of Common Stock for which the Option is exercised and the aggregate
fair market value of such shares of Common Stock on the exercise date, and the
Company will normally be entitled to a deduction in the year in which the Option
is exercised equal to the amount the employee is required to treat as ordinary
income.
If the exercise price of an Option is paid by surrender of previously
owned shares of Common Stock, the basis of the previously owned shares shall
normally be carried over to the shares acquired by exercise of the Option.
The Plan is not qualified under Section 401(a) of the Internal Revenue
Code of 1986, as amended.
(g) INVESTMENT OF FUNDS
Not applicable.
10
<PAGE>
(h) WITHDRAWAL FROM THE PLAN; ASSIGNMENT OF INTEREST
Not applicable.
(i) FORFEITURE AND PENALTIES
Options shall not be transferrable or assignable other than by will or
the laws of decent or distribution as set forth below.
Options which have not been exercised as of the date an employee
terminates employment with the Corporation shall be forfeited by such employee;
provided, however, in the event of the death of the employee, the Committee may,
in its sole discretion, permit a deceased employee's personal representatives or
estate to exercise the Option within 30 days of the date of death.
(j) CHARGES AND DEDUCTIONS AND LIENS THEREFOR
Not applicable.
Item 2. Registrant Information and Employee Plan Annual Information
The Company will provide employees, without charge, upon written or
oral request, copies of any of the documents incorporated by reference in Item 3
of the Form S-8 registration statement filed by the Company, which documents are
further incorporated herein by reference, as well as any other documents
required to be delivered to employees.
Request for copies should be made to Richard C. Levin, Vice President,
Biospherics Incorporated, 12501 Indian Creek Court, Beltsville, Maryland 20705,
telephone number (301) 419-3900.
11
<PAGE>
Exhibit 5
February 7, 1996
Biospherics Incorporated
12051 Indian Creek Court
Beltsville, Maryland 20705
Ladies and Gentlemen:
We have acted as counsel to Biospherics Incorporated, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, of 400,000 shares of Common Stock of the Company, $0.01
par value per share, pursuant to a Registration Statement on Form S-8 to be
filed with the Securities and Exchange Commission (the "Registration
Statement").
In rendering the opinions contained herein, we have examined originals
or photostatic or certified copies of all certificates, documents, agreements
and other instruments as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that each of the
400,000 shares of the Common Stock of the Company covered by the Registration
Statement, when issued by the Company in accordance with the Biospherics
Incorporated Nonqualified Stock Option Plan, and for not less than the par value
thereof, will be duly authorized, validly issued, fully paid and nonassessable.
This opinion is furnished by us solely for the benefit of the Company
in connection with the filing of the Registration Statement. We consent to the
use of this opinion as an exhibit to the Registration Statement.
Very truly yours,
SMITH, SOMERVILLE & CASE, L.L.C.
By:\s\ James E. Baker, Jr.
-------------------------------------
James E. Baker, Jr., Member
12
