<PAGE> 1
REGISTRATION NO. __________
As filed with the Securities and Exchange Commission on February 7, 2000
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------------------
FOUNTAIN PHARMACEUTICALS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 62-1386759
------------------------------ -------------------
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7279 BRYAN DAIRY ROAD 33777
LARGO, FLORIDA ----------
- ---------------------------------------- (Zip Code)
(Address of principal executive offices)
-----------------------------------
FOUNTAIN PHARMACEUTICALS, INC.
1998 STOCK OPTION PLAN
(Full title of the plan)
------------------------------------
GERALD T. SIMMONS
7279 BRYAN DAIRY ROAD
LARGO, FLORIDA 33777
------------------------------------
COPIES OF COMMUNICATIONS TO:
STEPHEN M. COHEN, ESQUIRE
BUCHANAN INGERSOLL PROFESSIONAL CORPORATION
ELEVEN PENN CENTER, 14TH FLOOR, 1835 MARKET STREET
PHILADELPHIA, PA 19103-2985
(215) 665-8700
------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities To Be Amount To Be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share(2) Price(2) Registration Fee(3)
- ------------------------- ---------------- ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
Common Stock (par value 535,380 Shares $0.56 $299,812.80 $83.35
$0.001 per share)
</TABLE>
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities To Be Amount To Be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share(2) Price(2) Registration Fee(3)
- ------------------------- ---------------- ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
Common Stock (par value 201,000 Shares $0.625 $125,625.00 $34.92
$0.001 per share)
</TABLE>
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities To Be Amount To Be Offering Price Per Aggregate Offering Amount of
Registered Registered(1) Share(2) Price(3) Registration Fee(3)
- ------------------------- ---------------- ------------------ ------------------ -------------------
<S> <C> <C> <C> <C>
Common Stock (par value 13,620 Shares $0.26 $3,541.20 $0.98
$0.001 per share)
</TABLE>
(1) The provisions of Rule 416 of the Securities Act of 1933, as amended, shall
apply to the number of shares registered on this Registration Statement and
shall automatically increase or decrease as a result of stock splits, stock
dividends or similar transactions.
(2) In accordance with Rule 457(h), such price is the price at which the
options with respect to such shares may be exercised.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act of 1933, as amended. In accordance
with Rule 457(h) of the Securities Act of 1933, as amended, such price is
the average of the high and low sale prices for the Common Stock as quoted
on the OTC Bulletin Board on February 3, 2000.
================================================================================
<PAGE> 2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the Fountain Pharmaceuticals,
Inc. 1998 Stock Option Plan (the "Plan"). Fountain Pharmaceuticals, Inc.
("Fountain"), a Delaware corporation, is sometimes referred to herein as the
"Company" or the "Registrant."
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant hereby incorporates herein by reference into this
Registration Statement the documents listed in (a) through (c) below. The
Registrant also incorporates all documents subsequently filed by it with the
Securities and Exchange Commission (the "Commission") pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(a) The latest annual report of the Company filed on Form 10-KSB for
the fiscal year ended September 30, 1999;
(b) All other reports, if any, filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered by the
annual report referred to in (a) above including, but not limited to, the
Company's quarterly report filed on Form 10-QSB for the periods ended March 31,
1999 and June 30, 1999; and
(c) The description of the capital stock of the Company, par value
$0.001 per share, as set forth in the Company's Form 8-A filed with the
Commission on March 23, 1990 under Section 12 of the Exchange Act, including
any amendments or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 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
indicate 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a Delaware corporation to indemnify any persons who are, or are
threatened to be made, parties to any threatened, pending or completed legal
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation), by
reason of the fact that such person was an officer or director of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity
<PAGE> 3
may include expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by such person in
connection with such action, suit or proceeding, provided that such officer or
director acted in good faith in a manner he or she reasonably believed to be in
or not opposed to the corporation's best interests, and, for criminal
proceedings, had no reasonable cause to believe his or her conduct was illegal.
A Delaware corporation may indemnify officers and directors in an action by or
in the right of the corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation in the performance of his
or her duty. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him or her against the expenses which such officer or director
actually and reasonably incurred.
The Fifth Article of the Company's Restated Certificate of
Incorporation provides for the indemnification of directors, officers and
employees of the Company within the limitations of Section 145.
In accordance with Section 102(b)(7) of the DGCL, the Sixth Article of
the Company's Restated Certificate of Incorporation provides that directors
shall not be personally liable for monetary damages for breaches of their
fiduciary duty as directors, except for (i) breaches of their duty of loyalty
to the Company or its Stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or knowing violations of law, (iii)
certain transactions under Section 174 of the DGCL (unlawful payment of
dividends or unlawful stock purchases or redemptions), or (iv) transactions
from which a director derives an improper personal benefit. The effect of the
provision is to eliminate the personal liability of directors for monetary
damages for actions involving a breach of their fiduciary duty of care,
including any actions involving gross negligence.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
The following is a complete list of exhibits filed as part of this
Registration Statement, which are incorporated herein by reference:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
<S> <C> <C>
4.1 Fountain Pharmaceuticals, Inc. Incorporated herein by reference from the
1998 Stock Option Plan Company's Definitive Information Statement on
Schedule 14C filed on July 1, 1999.
5.1 Opinion of Buchanan Ingersoll Professional Filed herewith.
Corporation.
23.1 Consent of Buchanan Ingersoll Professional See Exhibit 5.1 hereof.
Corporation.
23.2 Consent of Aidman, Piser & Company, P.A. Filed herewith.
</TABLE>
- -----------------------------
<PAGE> 4
ITEM 9. UNDERTAKINGS
(a) The undersigned company 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 this
Registration Statement or any material change to such
information 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; and
(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 company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
company'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 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 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 6 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the 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.
<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Largo, State of Florida, on the 28th day of January,
2000.
FOUNTAIN PHARMACEUTICALS, INC.
By: /s/ Gerald T. Simmons
-------------------------------------
Gerald T. Simmons
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Gerald T. Simmons, such person's true
and lawful attorney-in-fact and agent, with full power of substitution and
revocation, for such person and in such person's name, place and stead, in any
and all amendments (including post-effective amendments to this Registration
Statement) 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 and necessary to be done, as
fully to all intents and purposes as such person might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, 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 by the following persons in the
capacities indicated on January 28, 2000.
Date: January 28, 2000 By: /s/ Joseph S. Schuchert, Jr.
-------------------------------------------
Joseph S. Schuchert, Jr.
Chairman and Director
Date: January 28, 2000 By: /s/ James E. Fuchs
-------------------------------------------
James E. Fuchs
Secretary and Director
Date: January 28, 2000 By: /s/ John C. Walsh
-------------------------------------------
John C. Walsh
Director
Date: January 28, 2000 By: /s/ Christopher Brown
-------------------------------------------
Dr. Christopher Brown
Director
Date: January 28, 2000 By: /s/ Carol A. Rae
-------------------------------------------
Carol A. Rae
Director
<PAGE> 6
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION METHOD OF FILING
<S> <C> <C>
4.1 Fountain Pharmaceuticals, Inc. Incorporated herein by reference from the
1998 Stock Option Plan Company's Definitive Information Statement on
Schedule 14C filed on July 1, 1999.
5.1 Opinion of Buchanan Ingersoll Professional Filed herewith.
Corporation.
23.1 Consent of Buchanan Ingersoll Professional See Exhibit 5.1 hereof.
Corporation.
23.2 Consent of Aidman, Piser & Company, P.A. Filed herewith.
</TABLE>
<PAGE> 1
Exhibit 5.1
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
ATTORNEYS
February 7, 2000
Fountain Pharmaceuticals, Inc.
7279 Bryan Dairy Road
Largo, Florida 33777
Ladies and Gentlemen:
We have acted as counsel to Fountain Pharmaceuticals, Inc., a Delaware
corporation ("Fountain") (sometimes referred to as the "Company"), in
connection with the registration under the Securities Act of 1933, as amended
(the "Securities Act"), of 750,000 shares of common stock, par value $0.001 per
share of Fountain (the "Common Stock") reserved for issuance pursuant to the
Fountain Pharmaceuticals, Inc. 1998 Stock Option Plan (the "Plan"). In such
capacity, we have examined the following:
1. The Certificate of Incorporation, as amended, and the Bylaws, as
amended, of the Company;
2. The Registration Statement on Form S-8 with respect to the Plan
(the "Registration Statement"), filed by Fountain with the Commission pursuant
to the Securities Act;
3. Proceedings of the Board of Directors of the Company relating to
the adoption of the Plan, and the authorization, execution and filing of the
Registration Statement; and
4. Such other documents, certificates, records, statutes and decisions
as we considered necessary to express the opinion contained herein.
Based upon the foregoing, we are of the opinion that when the Common
Stock has been duly issued and delivered pursuant to the terms of the Plan,
such shares of Common Stock will be validly issued, fully paid and
nonassessable.
<PAGE> 2
We hereby consent to be named in the Registration Statement, and in
the Prospectus which constitutes a part thereof, as counsel which has passed
upon the legality of the shares of Fountain Common Stock to be issued pursuant
to the Plan. We further consent to the filing of a copy of this opinion as an
exhibit to the Registration Statement.
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ Stephen M. Cohen
--------------------------
Stephen M. Cohen
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Fountain Pharmaceuticals, Inc. (the
"Company") of our report dated November 9, 1999 relating to the financial
statements appearing in the Company's Annual Report on Form 10-KSB for the
fiscal year ended September 30, 1999
/s/ Aidman, Piser & Company, P.A.
- ---------------------------------
Tampa, Florida
January 28, 2000
