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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION VIA THE EDGAR SYSTEM ON MAY 7, 1999
Registration No. 333-
- ----------------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
Registration Statement
under
The Securities Act of 1933
U.S. BIOSCIENCE, INC.
----------------------------------------------------
(Exact name of issuer as specified in its charter)
Delaware 23-2460100
------------------------------------ ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One Tower Bridge, 100 Front Street
West Conshohocken, Pennsylvania 19428
- ---------------------------------------- -----------
(Address of principal executive offices) Zip Code
U.S. Bioscience, Inc. 1999 Incentive Compensation Plan
- --------------------------------------------------------------------------------
(Full title of the Plan)
C. Boyd Clarke
President and Chief Executive Officer
U.S. Bioscience, Inc.
One Tower Bridge, 100 Front Street
West Conshohocken, Pennsylvania 19428
-----------------------------------------
(Name and address of agent for service)
(610) 832-0570
----------------------------------------------------------
(Telephone number, including area code, of agent for service)
Copies to:
Howell Reeves, Esquire
Wolf, Block, Schorr and Solis-Cohen LLP
Twelfth Floor Packard Building
Philadelphia, Pennsylvania 19102
(215) 977-2234
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of securities to be price per offering registration
to be registered registered share (1) price fee
- --------------------- ------------- ---------- ----------- ------------
Common Stock, $.01 3,000,000(2) $10.56 $31,680,000 $8,807.04
par value
- --------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rules 457(c) and 457(h)(1)under the Securities Act of 1933,
based upon the average of the high and low reported prices of the
Registrant's Common Stock on the American Stock Exchange of $10.56 per
share on May 3, 1999.
(2) This Registration Statement covers: 3,000,000 shares of Common Stock which
may be issued pursuant to the U.S. Bioscience, Inc. 1999 Incentive
Compensation Plan. Pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from stock
splits, stock dividends, recapitalizations or certain other capital
adjustments.
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PART II
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
--------------------------------------------------
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by U.S. Bioscience, Inc. (the "Registrant")
with the Securities and Exchange Commission pursuant to the Securities Exchange
Act of 1934 are incorporated into this Registration Statement by reference:
1. The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998.
2. The description of the Registrant's shares of Common Stock, par
value $.01 per share (the "Common Stock"), contained in the registration
statement filed by the Registrant to register such securities under the
Securities Exchange Act of 1934, including Amendment No. 2 on Form 10/A filed
May 3, 1996 and all other amendments and reports filed for the purpose of
updating such description prior to the termination of the offering of the Common
Stock offered hereby.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934 after the date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement 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 in this Registration Statement and to
be a part hereof from the date of filing of such documents. Any statement
contained in a document 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 document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Experts.
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Not applicable.
2
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Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article VII of the Registrant's By-Laws provides that the Board of
Directors of the Registrant may indemnify any person, and take any action with
respect to any matter, to the fullest extent contemplated by Section 145 of the
General Corporation Law of the State of Delaware, except to the extent
specifically restricted by the Registrant's Certificate of Incorporation.
Under Section 145 of the General Corporation Law of the State of
Delaware, as amended, the Registrant has the power to indemnify directors and
officers under prescribed circumstances and subject to certain limitations
against certain costs and expenses, including attorneys' fees, actually and
reasonably incurred in connection with any action, suit or proceeding, whether
civil, criminal, administrative or investigative, to which any of them is a
party by reason of his or her being a director or officer of the Registrant if
it is determined that he or she acted in accordance with the applicable standard
of conduct set forth in such statutory provision.
Article Six of the Registrant's Certificate of Incorporation provides
indemnification to directors and officers of the Registrant against all
expenses, liability and loss reasonably incurred as a result of such person's
being a party to, or threatened to be made a party to, any action, suit or
proceeding by reason of the fact that he or she is or was a director or officer
of the Registrant or is or was serving at the request of the Registrant as a
director, officer, employee or agent of another enterprise, to the fullest
extent authorized by the General Corporation Law of the State of Delaware.
Article Six further permits the Registrant to maintain insurance, at its
expense, to protect itself and any such director or officer of the Registrant or
another enterprise against any such expenses, liability or loss, whether or not
the Registrant would have the power to indemnify such person against such
expenses, liability or loss under the General Corporation Law of the State of
Delaware. The Registrant has purchased directors' and officers' liability
insurance.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
3
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Item 8. Exhibits.
--------
The following Exhibits are filed as part of this Registration Statement:
4 U.S. Bioscience, Inc. 1999 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.36 to the Registrant's
Annual Report on Form 10-K filed with the Securities and Exchange
Commission on March 19, 1999)
5 Opinion of Wolf, Block, Schorr and Solis-Cohen LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP (contained in
Exhibit 5)
24 Power of Attorney (included on page 6 of this Registration
Statement)
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:
(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;
(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 (l)(i) and (1)(ii) 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
4
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or 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference 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 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.
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.
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SIGNATURES AND POWER OF ATTORNEY
--------------------------------
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 Borough of West Conshohocken, Commonwealth of Pennsylvania on
May 7, 1999.
U.S. BIOSCIENCE, INC.
By: /s/ Robert I. Kriebel
-----------------------------
Robert I. Kriebel
Executive Vice President,
Chief Financial Officer and
Treasurer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints C. Boyd Clarke, Robert I. Kriebel and Martha E.
Manning and each of them, such person's true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for such person and
in such person's name, place and stead, in any and all capacities, to sign any
and all amendments to this Registration Statement, including post-effective
amendments, and to file the same with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents full power and authority to do
and perform each and every act and thing requisite and necessary to be lawfully
done in connection with any such filing, as fully as such person might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their 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.
Signature Title Date
--------- ----- ----
/s/ C. Boyd Clarke President and Chief May 7, 1999
- ----------------------- Executive Officer and
C. Boyd Clarke Director (Principal
Executive Officer)
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Signature Title Date
--------- ----- ----
/s/ Robert I. Kriebel Executive Vice President, May 7, 1999
- ----------------------- Chief Financial Officer,
Robert I. Kriebel Treasurer and Director
(Principal Financial Officer)
/s/ Paul Calabresi Director May 7, 1999
- -----------------------
Paul Calabresi
Director May __, 1999
- -----------------------
Brian H. Dovey
/s/ Douglas J. MacMaster, Jr. Director May 7, 1999
- -----------------------------
Douglas J. MacMaster, Jr.
/s/ Allen Misher, Ph.D. Director May 7, 1999
- -----------------------
Allen Misher, Ph.D.
/s/ George H. Ohye Director May 7, 1999
- -----------------------
George H. Ohye
Director May __, 1999
- -----------------------
Betsey Wright
/s/ Mark R. Bausinger Vice President May 7, 1999
- ----------------------- (Principal Accounting
Mark R. Bausinger Officer)
7
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U.S. BIOSCIENCE, INC.
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
-------------
Exhibit No.
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4 U.S. Bioscience, Inc. 1999 Incentive Compensation Plan
(incorporated by reference to Exhibit 10.36 to the
Registrant's Annual Report on Form 10-K filed with the
Securities and Exchange Commission on March 19, 1999)
5 Opinion of Wolf, Block, Schorr and Solis-Cohen LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Wolf, Block, Schorr and Solis-Cohen LLP
(contained in Exhibit 5)
24 Power of Attorney (included on page 6 of this
Registration Statement)
8
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EXHIBIT 5
LAW OFFICES
WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP
TWELFTH FLOOR PACKARD BUILDING
111 SOUTH 15TH STREET
PHILADELPHIA, PA 19102-2678
(215) 977-2000
FACSIMILE: (215) 977-2334
May 7, 1999
U.S. Bioscience, Inc.
One Tower Bridge
100 Front Street
West Conshohocken, PA 19428
Re: U.S. Bioscience, Inc. - Registration Statement
on Form S-8 Relating to the U.S. Bioscience,
Inc. 1999 Incentive Compensation Plan
----------------------------------------------
Ladies and Gentlemen:
As counsel to U.S. Bioscience, Inc. (the "Company"), we have assisted in
the preparation of a Registration Statement on Form S-8 (the "Registration
Statement") to be filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Securities
Act"), relating to 3,000,000 shares of the Company's Common Stock, $.01 par
value (the "Common Stock"), that may be issued under the Company's 1999
Incentive Compensation Plan (the "Plan").
In this connection, we have made such legal and factual examinations and
inquiries, including the examination of originals or copies certified or
otherwise identified to our satisfaction of such corporate records, including
the Company's Certificate of Incorporation, as amended, and By-Laws, as amended,
and such other documents as we have deemed necessary or appropriate for purposes
of this opinion. In all examinations of documents, instruments and other
papers, we have assumed the genuineness of all signatures on original and
certified documents and the conformity to original and certified documents of
all copies submitted to us as conformed, photostatic or other copies. As to
matters of fact which have not been independently established, we have relied
upon representations of officers of the Company.
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Based upon the foregoing examination and the information thus supplied, it
is our opinion that the shares of Common Stock offered under the Plan are duly
authorized and, when issued pursuant to the terms of the Plan, will be legally
issued, fully paid and non-assessable.
We hereby expressly consent to the inclusion of this opinion as an exhibit
to the Registration Statement. In giving this consent, we do not admit that we
are in the category of persons whose consent is required under Section 7 of the
Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ WOLF, BLOCK, SCHORR AND SOLIS-COHEN LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the U.S. Bioscience, Inc. 1999 Incentive Compensation
Plan and related prospectus, of our report dated February 15, 1999, with respect
to the consolidated financial statements of U.S. Bioscience, Inc. included in
its Annual Report (Form 10-K) for the year ended December 31, 1998, filed with
the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
May 7, 1999
