As filed with the Securities and Exchange Commission on September 19, 1997
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
UNIGENE LABORATORIES, INC.
(Exact name of issuer as specified in its charter)
Delaware 22-2328609
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
110 Little Falls Road
Fairfield, New Jersey 07004
(Address of Principal Executive Offices) (Zip Code)
UNIGENE LABORATORIES, INC.
1994 EMPLOYEE STOCK OPTION PLAN
(Full title of the plan)
JESSE MARGOLIN, ESQ.
Becker Ross Stone DeStefano & Klein
317 Madison Avenue - Suite #1410
New York, New York 10017-5372
(Name and address of agent for service)
(212) 697-2310
(Telephone number, including area code, of agent for service)
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Calculation of Registration Fee
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Proposed Maximum Proposed Maximum
Amount to be Offering Price per Aggregate Offering Amount of
Title of Securities to be Registered Registered Share(1) Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 750,000(2)(3) $3.78 $2,835,000 $ 859.09
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee, in accordance with Rule 457(c), on the basis of the
average of the high and low prices per share of Common Stock of the
registrant on September 3, 1997 as reported on the NASDAQ National
Market System.
(2) Reserved for issuance upon exercise of options which may be granted
under the 1994 Employee Stock Option Plan.
(3) There are also being registered such additional indeterminate number of
shares of Common Stock as may be required to cover possible adjustments
by reason of the anti-dilution provisions contained in the Plan.
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<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Documents containing the information specified in Part I of this
Registration Statement will be given or sent to all persons who participate in
the Unigene Laboratories, Inc. 1994 Employee Stock Option Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents as filed with the Securities and Exchange
Commission (the "Commission") by Unigene Laboratories, Inc., a Delaware
corporation (the "Registrant") are hereby incorporated by reference into this
Registration Statement:
A. The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or, if the financial statements therein are more current, the
Registrant's latest prospectus, other than the prospectus of which this document
is a part, filed pursuant to Rule 424(b) with the Commission under the
Securities Act of 1933, as amended (the "Securities Act").
B. All other reports filed by the Registrant pursuant to Sections 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report or the prospectus referred to in (A.) above.
C. The description of the Registrant's Common Stock, $.01 par value, as
set forth in Item 1 of the Registrant's Registration Statement on Form 8-A (File
No. 0-16005) filed with the Commission on August 4, 1987 and which became
effective on August 12, 1987.
All documents filed subsequent to the date of this Registration
Statement pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act
prior to the filing of a post-effective amendment to this Registration Statement
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 thereof from the date
of filing such 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 or is 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.
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Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
None.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
generally provides that a corporation is authorized to indemnify any person who
is made a party to any threatened, pending or completed action, suit or
proceeding 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, in any of such capacities of another corporation or other
enterprise, if such director, officer, employee or agent 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 his conduct was unlawful. This statute describes
in detail the right of the Registrant to identify any such person.
Section 102(b)(7) of the DGCL enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director for violations of the director's fiduciary
duty, except (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)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. The Registrant's Certificate of Incorporation limits the liability of
directors to the extent permitted by Section 102(b)(7) of the DGCL.
Article VI of the Registrant's By-Laws requires the Registrant to
indemnify each of its directors and officers to the fullest extent permitted by
law in connection with any actual or threatened action or proceeding arising out
of his service to the Registrant or to other organizations at the Registrant's
request.
Section 9 of the Plan provides that the members of the Board of
Directors and stock option committee shall be indemnified by the Registrant
against all costs and expenses reasonably incurred by them in connection with
any action, suit or proceeding to which they or any of them may be a party by
reason of any action taken or failure to act under or in connection with the
Plan, or any option granted thereunder, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by legal counsel
selected by the Registrant) or paid by them in satisfaction of a judgment in any
such action, suit or proceeding, except a judgment based upon a finding of bad
faith.
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed 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.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 - 1994 Employee Stock Option Plan. Incorporated by
reference to Exhibit 4.1 contained in the
Registrant's Registration Statement on Form S-8
(Registration No. 333-01897).
4.1.1 - Amendment of 1994 Employee Stock Option Plan.
4.2 - Specimen Certificate for Common Stock, par value
$.01 per share. Incorporated by reference to Exhibit
4.2 in Registration Statement No. 33-6877 on Form
S-1.
4.3 - Certificate of Incorporation of Registrant and
amendments to May 22, 1987. Incorporated by
reference to Exhibits 3.1 and 3.1.1 contained in the
Registrant's Registration Statement on Form S-1
(Registration No. 33-6877).
5.0 - Opinion of Becker Ross Stone DeStefano & Klein as to
the legality of the shares being registered.
23.1 - Consent of Becker Ross Stone DeStefano & Klein
(included in Exhibit 5 to this Registration
Statement).
23.2 - Consent of KPMG Peat Marwick LLP.
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
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(b) 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;
(c) 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 (1)(a) and (1)(b) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the 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 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.
(4) 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 the Registration
Statement shall be deemed to be a new Registration Statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act 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.
<PAGE>
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 or amendment to be signed on its behalf by the
undersigned, thereunto duly authorized, in Fairfield, New Jersey, on September
19, 1997.
UNIGENE LABORATORIES, INC.
By: /S/WARREN P. LEVY
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Warren P. Levy,
President
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 date indicated.
Signature Title Date
--------- ----- ----
/S/WARREN P. LEVY Director; President September 19, 1997
- ----------------- (Chief Executive Officer)
Warren P. Levy
/S/RONALD S. LEVY Director; Vice President September 19, 1997
- ----------------- (Chief Operating Officer)
Ronald S. Levy
/S/JAY LEVY Chairman of the Board of September 19, 1997
- ----------- Directors; Treasurer
Jay Levy (Chief Financial and
Chief Accounting Officer)
/S/ROBERT F. HENDRICKSON Director September 19, 1997
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Robert F. Hendrickson
/S/ROBERT G. RUARK Director September 19, 1997
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Robert G. Ruark
/S/GEORGE M.WEIMER Director September 19, 1997
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George M. Weimer
EXHIBIT 4.1.1
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UNIGENE LABORATORIES, INC.
1994 EMPLOYEE STOCK OPTION PLAN
AMENDMENT
1. The Board of Directors of the Company on April 8, 1997, and the
Shareholders of the Company on June 30, 1997, approved an amendment of the Plan
increasing the number of shares of Common Stock of the Company which may be sold
under the Plan from one million five hundred thousand (1,500,000) shares to two
million two hundred fifty thousand (2,250,000) shares.
2. Accordingly, Section 4 of the Plan is hereby amended, effective June
30, 1997, by changing the number of shares which may be sold under the Plan to
two million two hundred fifty thousand (2,250,000) shares (subject to adjustment
as provided in Section 7 of the Plan).
UNIGENE LABORATORIES, INC.
By: /S/ WARREN P. LEVY
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Warren P. Levy, President
EXHIBIT 5
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September 19, 1997
Unigene Laboratories, Inc.
110 Little Falls Road
Fairfield, NJ 07004
Gentlemen:
We have acted as your counsel in connection with the preparation and
filing of your Registration Statement on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended (the "Act"), relating to the public
offering of up to 750,000 shares of your Common Stock, $.01 par value ("Common
Stock").
We have examined such documents and questions of law that we have
deemed necessary or appropriate for the purposes of the opinion expressed below.
In such examination, we have assumed the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, and the conformity
to originals of all documents submitted to us as copies thereof. As to various
questions of fact material to our opinion, we have relied upon statements of
officers and representatives of the Company and others.
Based upon the foregoing, we are of the opinion that the 750,000 shares
of Common Stock issuable upon the exercise of options which may be granted under
the Plan have been duly authorized and reserved for issuance and, when issued in
accordance with the terms of the options, will be validly issued, fully paid and
non-assessable, and will have the characteristics described in the Registration
Statement.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not hereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Act or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Very truly yours,
BECKER ROSS STONE
DESTEFANO & KLEIN
By: /s/Jesse Margolin
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Jesse Margolin, a Partner
EXHIBIT 23.2
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CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Unigene Laboratories, Inc.:
We consent to incorporation by reference in this Registration Statement on Form
S-8 of Unigene Laboratories, Inc. of our report dated March 13, 1997, relating
to the balance sheets of Unigene Laboratories, Inc. and the related statements
of operations, stockholders' equity, and cash flows for each of the years in the
three-year period ended December 31, 1996 which reports appear in the December
31, 1996 annual report on Form 10-K of Unigene Laboratories, Inc.
Our report dated March 13, 1997 contains an explanatory paragraph that states
that the Company has suffered recurring losses from operations which raises
substantial doubt about its ability to continue as a going concern. The
financial statements do not include any adjustments that might result from the
outcome of this uncertainty.
KPMG PEAT MARWICK LLP
New York, New York
September 19, 1997
