As filed with the Securities and Exchange Commission on March 5, 1999
Registration No. 333-__________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF
1933
NORTH AMERICAN VACCINE, INC.
----------------------------
(Exact name of registrant as specified in its charter)
Canada 98-0121241
------------------------------- -------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10150 Old Columbia Road
Columbia, Maryland 21046
-------------------------
(Address of Principal Executive Offices) (Zip Code)
1997 Share Option Plan and 1999 Non-Employee Director and
---------------------------------------------------------
Senior Executive Stock Option Plan
----------------------------------
(Full title of the plans)
Daniel J. Abdun-Nabi, Esq.
Senior Vice President -- Legal Affairs
and General Counsel
North American Vaccine, Inc.
10150 Old Columbia Road
Columbia, Maryland 21046
---------------------------------------
(Name and address of agent for service)
(410) 309-7100
------------------------------------------------------------
(Telephone number, including area code, of agentfor service)
Copy to:
Cary J. Meer, Esq.
Kirkpatrick & Lockhart LLP
1800 Massachusetts Avenue, N.W.
Washington, D.C. 20036
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
-------------------------------
================================================================================
Proposed Proposed
maximum maximum Amount of
Title of securities to Amount to offering aggregate registration
be registered be registered price per offering price fee
share (1) (1)
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock, no par 5,000,000 $7.6875 $38,437,500.00 $10,685.63
value per share (2) shares
- --------------------------------------------------------------------------------
Common Stock, no par 650,000 $7.6875 $ 4,996,875.00 $ 1,389.13
value per share (3) shares
- --------------------------------------------------------------------------------
Total 5,650,000 $7.6875 $43,434,375.00 $12,074.76
shares
================================================================================
</TABLE>
- --------------------
(1) Inserted solely for the purpose of calculating the registered fee pursuant
to Rule 457(h). The fee is calculated on the basis of the average of the
high and low sales prices for the Registrant's Common Stock on the
American Stock Exchange on March 1, 1999.
(2) Includes 5,000,000 shares of common Stock issuable under the Registrant's
1997 Share Option Plan.
(3) Includes 650,000 shares of Common Stock issuable under the Registrant's
1999 Non-Employee Director and Senior Executive Stock Option Plan.
-2-
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by North American Vaccine, Inc. (the
"Company") are incorporated by reference into this Registration Statement:
(a) The Company's Form 10-K for the fiscal year ended December 31, 1998;
(b) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended ("Exchange
Act"), since December 31, 1998; and
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A (Registration No. 1-10451).
All documents subsequently filed by the Company with the Securities and
Exchange Commission ("SEC") pursuant to Sections 12, 13(a), 13(c), 14 and 15(d)
of the Exchange Act after the date of this Registration Statement, but prior to
the filing of a post-effective amendment to this Registration Statement that
indicates that all securities offered by this Registration Statement have been
sold or that deregisters all such securities then remaining unsold, shall be
deemed to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of the filing
of such document with the SEC until the information contained therein is
superseded or updated by any subsequently filed document that is incorporated by
reference into this Registration Statement or by any document that constitutes
part of the prospectus relating to the 1999 Non-Employee Director and Senior
Executive Stock Option Plan or the 1997 Share Option Plan that meets the
requirements of Section 10(a) of the Securities Act of 1933, as amended
("Securities Act").
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Bylaws of the Company provide that officers and directors shall be
indemnified against expenses and liabilities incurred by such directors and
officers in respect of their duties as directors and officers of the Company, to
the extent permitted by the Canada Business Corporations Act.
-3-
<PAGE>
Section 124 of the Canada Business Corporations Act provides that, except
in respect of an action by or on behalf of the corporation or body corporate to
procure a judgment in its favour, a corporation may indemnify a director or
officer of the corporation, or a person who acts or acted at the corporation's
request as a director or officer of a body corporate of which the corporation is
or was a shareholder or creditor (the "Indemnitee"), and his heirs and legal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by him in
respect of any civil, criminal or administrative action or proceeding to which
he is made a party by reason of being or having been a director or officer of
such corporation or body corporate, if
(i) he acted honestly and in good faith with a view to the best
interests of the corporation; and
(ii) in the case of a criminal or administrative action or proceeding that
is enforced by a monetary penalty, he had reasonable grounds for believing that
his conduct was lawful.
A corporation may also, with the approval of a court, indemnify an
Indemnitee in respect of an action by or on behalf of the corporation or body
corporate to procure a judgment in its favour, to which he is made a party by
reason of being or having been a director or an officer of the corporation or
body corporate, against all costs, charges and expenses reasonably incurred by
him in connection with such action if he fulfills the conditions set out in (i)
and (ii) above.
An Indemnitee is entitled to indemnity from the corporation in respect of
all costs, charges and expenses reasonably incurred by him in connection with
the defense of any civil, criminal or administrative action or proceeding to
which he is made a party by reason of being or having been a director or officer
of the corporation or body corporate, if the person seeking indemnity was
substantially successful on the merits in his defense of the action or
proceeding, and fulfills the conditions set out in paragraphs (i) and (ii)
above.
An Indemnitee (provided such person meets the conditions set out in
paragraphs (i) and (ii) above) may apply to a court for an order approving an
indemnity under the Canada Business Corporations Act and the court may so order
and make any further order it thinks fit. Any applicant to a court shall give
the Director under the Canada Business Corporations Act notice of the
application and the Director is entitled to appear and be heard in person or by
counsel. On such an application, the court may also order notice be given to any
interested person and such person is entitled to appear and be heard in person
or by counsel.
The Company has entered into Indemnity Agreements with certain directors
and officers of the Company (each a "Person") pursuant to which the Company is
obligated to maintain directors and officers insurance and to indemnify each
Person to the extent permitted by applicable law. The Indemnity Agreements also
establish procedures to be followed by a Person for claims for indemnification
under the Company's by-laws, including the advancement by the Company of all
costs and expenses incurred by a Person in connection with the defense of any
claim or any action brought by the Person to establish or enforce a right to
indemnification under the Indemnity Agreement.
-4-
<PAGE>
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following are filed herewith as part of this Registration Statement:
EXHIBIT NO. EXHIBIT
---------- -------
5 Opinion of Blake, Cassels & Graydon as to the legality of
the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 The consent of Blake, Cassels & Graydon to the use of their
opinion as an exhibit to this Registration Statement is
included in their opinion filed herewith as Exhibit 5
24 Power of Attorney (see page 7)
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% change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
Registration Statement;
-5-
<PAGE>
(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 by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the Registration Statement.
(2) That, for purposes 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 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.
(h) 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.
-6-
<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 Columbia, State of Maryland, on this 5th day of
March, 1999.
NORTH AMERICAN VACCINE, INC.
By: /s/ Randal D. Chase, Ph.D.
--------------------------
Randal D. Chase, Ph.D.
President and Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Daniel J. Abdun-Nabi or Randal D. Chase
his attorney-in-fact, with power of substitution, for him in any and all
capacities, to sign any amendments to this Registration Statement on Form S-8,
and to file same, with exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorney-in-fact, or his substitute or substitutes, may
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>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/Randal D. Chase Director, President and March 5, 1999
- ------------------------ Chief Executive Officer
Randal D. Chase, Ph.D. (Principal Executive Officer)
/s/ Lawrence J. Hineline Vice President - Finance March 5, 1999
- ------------------------ (Principal Financial and
Lawrence J. Hineline Accounting Officer)
/s/ Neil W. Flanzraich Chairman of the Board February 28, 1999
- ----------------------
Neil W. Flanzraich
</TABLE>
-7-
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ Francesco Bellini Director February 28, 1999
- -------------------------
Francesco Bellini, Ph.D.
/s/ Phillip Frost Director February 28, 1999
- -------------------------
Phillip Frost, M.D.
/s/ Alain Cousineau Director February 22, 1999
- -------------------------
Alain Cousineau
/s/ Jonathan Deitcher Director February 22, 1999
- -------------------------
Jonathan Deitcher
/s/ Denis Dionne Director February 28, 1999
- -------------------------
Denis Dionne
/s/ Gervais Dionne Director February 18, 1999
- -------------------------
Gervais Dionne, Ph.D.
/s/ Lyle Kasprick Director February 28, 1999
- -------------------------
Lyle Kasprick
/s/ Francois Legault Director February 28, 1999
- -------------------------
Francois Legault
/s/ Richard C. Pfenninger Director February 28, 1999
- -------------------------
Richard C. Pfenniger, Jr.
</TABLE>
-8-
<PAGE>
EXHIBIT INDEX
The following exhibits are filed herewith as part of this Registration
Statement:
EXHIBIT NO. DESCRIPTION
- ---------- -----------
5 Opinion of Blake, Cassels & Graydon as to the
legality of the securities being registered
23.1 Consent of Arthur Andersen LLP
23.2 The consent of Blake, Cassels & Graydon to
the use of their opinion as an exhibit to
this Registration Statement is included in
their opinion filed herewith as Exhibit 5
24 Power of Attorney (see page 7)
-9-
BLAKE, CASSELS & GRAYDON
Barristers & Solicitors
Patent & Trade-mark Agents
Box 25, Commerce Court West
Toronto, Ontario, Canada
M5L 1A9
Deliveries: 28th floor
Telephone: (416) 863-2400
Facsimile: (416) 863-2653
http://www.blakes.ca
March 2, 1999
Frank D. Guarascio
Direct Dial: (416) 863-3296
E-mail: [email protected]
Reference: 42085/1
North American Vaccine, Inc.
10150 Old Columbia Road
Columbia, Maryland
U.S.A. 21046
ATTENTION: DANIEL ABDUN-NABI, ESQ.
Dear Sirs:
RE: NORTH AMERICAN VACCINE, INC.
RE: 1997 SHARE OPTION PLAN AND 1999 NON-EMPLOYEE
DIRECTOR AND SENIOR EXECUTIVE STOCK OPTION PLAN
-----------------------------------------------
We have acted as Canadian counsel to North American Vaccine, Inc.
(the "Corporation") in connection with the proposed issuance of common shares in
the capital of the Corporation (the "Common Shares") pursuant to the 1997 Share
Option Plan and the 1999 Non-Employee Director and Senior Executive Stock Option
Plan of the Corporation (collectively, the "Plans").
In giving this opinion, we have examined the originals or copies of
the following documents:
A. all current and effective articles and by-laws of the Corporation;
B. resolutions of the board of directors of the Corporation dated
December 9, 1997 (relating to the approval of the 1997 Share Option
Plan); January 25, 1999 (relating to the approval of the 1999
Non-Employee Director and Senior Executive Stock Option Plan) and
February 23, 1999 (relating to the approval of the Registration
Statement on Form S-8 for the Plans);
C. resolutions of the Compensation Committee of the board of directors
of the Corporation dated November 6, 1997 (relating to the approval of
the 1997 Share Option Plan) and January 22, 1999 (relating to the
approval of the 1999 Non-Employee Director and Senior Executive Stock
Option Plan);
<PAGE>
D. resolutions of the shareholders of the Corporation dated May 20, 1998
(relating to the approval of the 1997 Share Option Plan) and February
23, 1999 (relating to the approval of the 1999 Non-Employee Director
and Senior Executive Stock Option Plan);
E. a Certificate of Compliance for the Corporation issued by the Deputy
Director under the Canada Business Corporations Act (Consumer and
Corporate Affairs Canada), dated February 26, 1999;
F. the Plans; and
G. such other documents, records and certificates of officers of the
Corporation and public officials as we considered necessary.
The opinions expressed herein are subject to the following
qualifications, reservations and assumptions in respect of which we have made no
independent investigations or examinations:
1. in our examination of the above documents, we have assumed the
genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic
original documents of all documents submitted to us as certified
copies or facsimiles;
2. we have assumed the charter documents and by-laws of the
Corporation referred to in (a) above are in full force and effect
and that there are no further amendments to such charter
documents, and that such by-law constitutes the sole outstanding
by-law of the Corporation.
3. with respect to the resolutions of the Board of Directors of
the Corporation referred to in (b) above and the Compensation
Committee of the Board of Directors of the Corporation referred
to in (c) above, we have assumed that such resolutions continue
in full force and effect, unamended as of the date hereof and
that no unanimous shareholder agreement is or was in force at the
relevant times which would have removed from such directors the
power and authority to authorize and approve the Plans;
4. with respect to the resolutions of the shareholders of the
Corporation referred to in (d) above, we have assumed that such
resolutions are in full force and effect, unamended as of the
date hereof;
5. we have assumed the Plans do not violate the provisions of,
and is in compliance with, all applicable federal, state and
local laws, ordinances and regulations of the United States of
America or any state thereof applicable to the Plans or the
matters contemplated thereby; and
6. we have assumed that there are no agreements in existence
(including, without limitation, any agreements amongst all or any
of the shareholders of the Corporation) which would be violated
or breached upon the establishment of the Plans, the granting of
the options under the Plans, or the issuance of shares in
accordance with the Plans.
<PAGE>
As to various questions of fact material to our opinion, we have
relied solely upon a certificate of an officer of the Corporation of even date
herewith and have assumed that the statements made in such certificate are true
and accurate as of and on the date hereof.
We are qualified to practice law only in the Province of Ontario and
our opinions are limited to the laws of the Province of Ontario and the laws of
Canada applicable therein and are based on legislation and regulations in effect
on the date hereof. No opinion is expressed herein with respect to compliance
with any applicable securities legislation in connection with the establishment
of the Plans, the granting of the options under the Plans or the issuance of
shares in accordance with the Plans.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Corporation is a corporation duly incorporated and existing
under the laws of Canada.
2. All necessary corporate proceedings under the Canada Business
Corporations Act have been taken by the Corporation to authorize the
establishment of the Plans.
3. All necessary corporate proceedings under the Canada Business
Corporations Act to authorize the issuance of up to 5,000,000 Common
Shares under the Corporation's 1997 Share Option Plan and 650,000
Common Shares under the Corporation's 1999 Non-Employee Director and
Senior Executive Stock Option Plan have been taken.
4. All Common Shares, when issued and delivered pursuant to and in
accordance with the terms and conditions of the Plans, will be duly and
validly issued and will be outstanding as fully paid and non-assessable
under the Canada Business Corporations Act, provided that in the event the
consideration for such Common Shares consists in whole or in part of common
shares of the Corporation, the Corporation: (i) has complied with the
requirements of, and is in compliance with, subsection 34(2) of the Canada
Business Corporations Act, as amended or replaced from time to time; and
(ii) is in compliance with the terms and conditions of the articles of the
Corporation.
This opinion is provided for the sole and exclusive benefit of the
Corporation, and may not be relied upon by any other person whatsoever. We
hereby consent to the filing of this opinion as an exhibit to the Corporation's
Form S-8 Registration Statement and Listing Application in which the Corporation
will register and list the Common Shares to be issued under the Plans.
Yours very truly,
/s/ Blake, Cassels & Graydon
FDG:jg
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our report dated January 18, 1999
included in North American Vaccine, Inc. and Subsidiaries' Form 10-K for the
year ended December 31, 1998, and to all references to our Firm included in or
made a part of this registration statement.
/s/ ARTHUR ANDERSEN LLP
Baltimore, Maryland
March 5, 1999
