As filed with the Securities and Exchange Commission on November 10, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
ENTREMED, INC.
---------------------------------------------------
(Exact Name of registrant as specified in its charter)
Delaware 58-1959440
----------------------------- -----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9610 Medical Center Drive, Suite 200
Rockville, Maryland 20850
----------------------------------------------------------
(Address, including zip code, of principal executive offices)
EntreMed, Inc. 1992 Stock Incentive Plan and EntreMed, Inc.
Amended and Restated 1996 Stock Option
Plan and Certain Compensatory Stock Warrants
-------------------------
(Full title of the plans)
John W. Holaday, Ph.D
Chairman, President and Chief Executive Officer
EntreMed, Inc.
9610 Medical Center Drive, Suite 200
Rockville, Maryland 20850
(301) 217-9858
------------------------------------------------------
(Name, address, including zip code, and telephone number
including area code, of agent for service)
Copy to:
Richard E. Baltz, Esq.
Arnold & Porter
555 12th Street, N.W.
Washington, D.C. 20004
(202) 942-5124
---------------------
Calculation of Registration Fee
<TABLE>
<CAPTION>
- ---------------------------- ------------------- --------------------- ---------------------- ------------------------
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Securities to be Registered (1) Unit (2) Price (2) Registration Fee (3)
Registered
<S> <C> <C> <C> <C>
- ---------------------------- ------------------- --------------------- ---------------------- ------------------------
Common Stock, $0.01 par 1,750,000 $28.375 $49,656,250 $14,166
value per share 100,000 $13.00 $1,300,000
- ---------------------------- ------------------- --------------------- ---------------------- ------------------------
</TABLE>
(1) Pursuant to Rule 416, promulgated under the Securities Act of 1933, as
amended, an additional undeterminable number of shares of Common Stock is
being registered to cover any adjustment in the number of shares of Common
Stock issuable pursuant to the anti-dilution provisions of the 1992 Stock
Incentive Plan, the Amended and Restated 1996 Stock Option Plan and the
Compensatory Stock Warrants.
<PAGE>
(2) Estimated solely for the purpose of determining the registration fee in
accordance with Rule 457(h) based on (a) with respect to the 1,750,000
shares of the Registrant's Common Stock issuable pursuant to the Amended
and Restated 1996 Stock Option Plan, the average of the high and low sale
prices of the Common Stock as reported on November 5, 1998 on the Nasdaq
National Market which date is within 5 business days prior to the date of
the filing of this Registration Statement, and (b) with respect to the
100,000 shares of the Registrant's Common Stock issuable pursuant to the
Compensatory Stock Warrants, the exercise price of such warrants.
(3) In addition to the shares being registered by this Registration
Statement, this Registration Statement also relates to 1,233,333 shares of
the Registrant's Common Stock issuable pursuant to the 1992 Stock Incentive
Plan for which Registration Statement on Form S-8, No. 333-26057 is
currently effective. An additional registration fee of $4,392 was paid upon
the initial filing of such registration statement registering a total of
1,233,333 shares of Common Stock.
Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus incorporated herein by reference that relates to shares of Common
Stock registered pursuant to this Registration Statement also relates to a total
of up to 1,233,333 shares of the Registrant's Common Stock registered pursuant
to Registration Statement No. 333-26057 filed on April 29, 1997. In the event
any of such previously registered shares are offered and sold prior to the date
of this Registration Statement, the amount of such shares will not be included
hereunder.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by EntreMed, Inc. ("Registrant" or
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(File No. 000-20713), are incorporated herein by reference and made a part
hereof:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997, filed with the Commission on March 31,
1998, and Amendment to the Company's Annual Report on Form
10-K for the year ended December 31, 1997, filed with the
Commission on April 30, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for its fiscal
quarters ended March 31, 1998, as filed with the Commission on
May 15, 1998, June 30, 1998, as filed with the Commission on
August 12, 1998, and September 30, 1998, as filed with the
Commission on October 30, 1998; and
(c) The description of the common stock of the Company, par value
$0.01 per share ("Common Stock"), contained in a registration
statement on Form 8-A filed under the Exchange Act by the
Company on May 14, 1996, including any amendment or report
filed for the purpose of updating such description.
All documents and reports subsequently filed by the Company with the
Commission after the date of this Registration Statement pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all Common Stock offered hereby
has been sold or which deregisters such Common Stock then remaining unsold,
shall be deemed to be incorporated in this Registration Statement by reference
and shall be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be incorporated by
reference in this Registration Statement 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 in this Registration
Statement modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or so superseded, to
constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not Applicable.
II-1
<PAGE>
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") sets
forth conditions and limitations governing the indemnification of officers and
directors of the Company and certain other persons. Section 145 of the DGCL is
hereby incorporated herein by reference. The Company's Certificate of
Incorporation and Bylaws provide that the Company shall indemnify any person to
the full extent permitted by the DGCL.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or controlling persons of the Company pursuant to the Company's
Certificate of Incorporation and Bylaws and the DGCL, the Company has been
informed 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.
As authorized by Section 102(b)(7) of the DGCL, the Certificate of
Incorporation also limits, to the fullest extent permitted by Delaware law, a
director's liability for monetary damages for breach of fiduciary duty as a
director. The effect of this provision is to eliminate the rights of the Company
and its stockholders (through stockholders' derivative suits on behalf of the
Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in certain limited situations.
This provision does not eliminate a director's duty of care nor does it limit or
eliminate the rights of the Company or any stockholder to seek non-monetary
relief or remedies such as an injunction or rescission in the event of a
director's breach of the duty of care. These provisions will not alter the
liability of directors under federal securities laws.
The Company has obtained and maintains insurance policies having a face
amount totaling $15,000,000 (subject to certain deductible provisions and
exclusions) covering its officers and directors and indemnifying them against
loss on account of claims made against them, including, but not limited to,
damages, judgments, costs and the costs of defense of such claims, arising from
breach of duty, neglect, error, negligent misrepresentations, omission or act,
or any claim arising solely by reason of status as an officer or director.
Item 7. Exemption from Registration Claimed
Not Applicable.
II-2
<PAGE>
Item 8. Exhibits
The exhibits listed on the Exhibit Index on page II-6 of this
Registration Statement are filed herewith or are incorporated herein by
reference to other filings.
Item 9. Undertakings
The 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, as amended;
(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;
(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 (i) and (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 with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act") that are
incorporated by reference in the 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
II-3
<PAGE>
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 Company's annual report
pursuant to section 13(a) or 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 new securities at that time shall be deemed to be the
initial bona fide offering thereof.
5. 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 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.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Company 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 Rockville, State of Maryland, on November 9,
1998.
ENTREMED, INC.
By: /s/ John W. Holaday
---------------------------
John W. Holaday, Ph.D.
Chairman of the Board of Directors,
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
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/ John W. Holaday Chairman of the Board, President and November 9, 1998
- ------------------- Chief Executive Officer (Principal Executive
John W. Holaday, Ph.D. Officer)
/s/ R. Nelson Campbell Vice President and Chief Financial Officer November 9, 1998
- ---------------------- (Principal Financial and Accounting Officer)
R. Nelson Campbell
/s/ Donald S. Brooks Director November 9, 1998
- --------------------
Donald S. Brooks
/s/ Samuel R. Dunlap, Jr. Executive Advisor and Director November 9, 1998
- -------------------------
Samuel R. Dunlap, Jr.
/s/ Jerry Finkelstein Director November 9, 1998
- ---------------------
Jerry Finkelstein
/s/ Lee F. Meier Director November 9, 1998
- ----------------
Lee F. Meier
/s/ Mark C.M. Randall Director November 9, 1998
- ---------------------
Mark C.M. Randall
/s/ Wendell M. Starke Director November 9, 1998
- ---------------------
Wendell M. Starke
</TABLE>
II-5
<PAGE>
INDEX TO EXHIBITS
Exhibit 4.1 Certificate of Incorporation, as restated and amended
to date, of the Registrant (incorporated herein by
reference to Exhibit 3.1(b) of the Registrant's
Quarterly Report on Form 10-Q for its fiscal quarter
ended September 30, 1998, filed with the Commission
on October 30, 1998, and Exhibit 3.1(a) of the
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1997, filed with the Commission on
March 31, 1998, and to the Registrant's Registration
Statement on Form S-1 (File No. 333-3536) declared
effective by the Commission on June 11, 1996.)
Exhibit 4.2 Bylaws of the Registrant (incorporated herein by
reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-3536) declared effective by
the Commission on June 11, 1996.)
Exhibit 4.3 EntreMed, Inc. 1992 Stock Incentive Plan
(incorporated herein by reference to Exhibit 4.1 to
the Registrant's Registration Statement on Form S-8
(File No. 333-26057) filed on April 29, 1997).
Exhibit 4.4 EntreMed, Inc. Amended and Restated 1996 Stock Option
Plan, filed herewith (incorporated herein by
reference to Exhibit 10.27 to the Registrant's Annual
Report on Form 10-K for the year ended December 31,
1997, filed with the Commission on March 31, 1998).
Exhibit 5 Opinion of Arnold & Porter, filed herewith.
Exhibit 23.1 Consent of Arnold & Porter, included in the opinion
filed as Exhibit 5 hereto.
Exhibit 23.2 Consent of Ernst & Young LLP, filed herewith.
Exhibit 24 Powers of Attorney of certain directors of the
Registrant, filed herewith.
II-6
EXHIBIT 5
[ARNOLD & PORTER LETTERHEAD]
November 9, 1998
Board of Directors
EntreMed, Inc.
9610 Medical Center Drive, Suite 200
Rockville, Maryland 20850
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as special counsel to EntreMed, Inc. (the "Company") in
connection with the preparation of a registration statement on Form S-8 (the
"Registration Statement") relating to the Company's Amended and Restated 1996
Stock Option Plan (the "1996 Plan") and Certain Compensatory Stock Warrants (the
"Warrants") filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended (the "1933 Act") covering
1,850,000 shares (the "Shares") of common stock, par value $0.01 per share (the
"Common Stock"), issuable pursuant to the 1996 Plan or upon exercise of the
Warrants, as the case may be. This opinion is furnished to you at your request
to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K,
17 C.F.R. ss.229.601(b)(5), in connection with the Registration Statement.
For purposes of and in connection with rendering the opinions set forth
in this letter, we have examined such corporate records of the Company,
including, without limitation, the 1996 Plan, the Warrants, the Company's
Amended and Restated Certificate of Incorporation, as amended, its By-laws, and
resolutions of the Board of Directors and stockholders of the Company, and such
other documents as we deem necessary for rendering the opinions hereinafter
expressed.
The opinions set forth herein are subject to the following
qualifications, which are in addition to any other qualifications contained
herein:
A. We have assumed without verification the genuineness of all
signatures on all documents, the legal capacity of all natural persons, the
authority of the parties (other than the Company) executing such documents, the
authenticity of all documents submitted to us as originals, and the conformity
to original documents of all documents submitted to us as copies. We also have
assumed the accuracy, completeness and authenticity of statements of fact on
which we are relying and have made no independent investigations thereof.
<PAGE>
B. The opinions set forth herein are based on existing laws,
ordinances, rules, regulations, court and administrative decisions as they
presently have been interpreted and we can give no assurances that our opinions
would not be different after any change in any of the foregoing occurring after
the date hereof.
C. We have assumed without verification that, with respect to the
minutes of any meetings of the Company's Board of Directors or any committees
thereof or of the stockholders of the Company that we have examined, due notice
of the meetings was given or duly waived, the minutes accurately and completely
reflect all actions taken at the meetings and a quorum was present and acting
throughout the meetings.
D. We have assumed without verification the accuracy and completeness
of all corporate records made available to us by the Company.
E. We express no opinion as to the effect or application of any laws or
regulations other than the General Corporation Law of the State of Delaware. As
to matters governed by such law, we have relied exclusively on the latest
standard compilation of such statute as reproduced in commonly accepted
unofficial publications available to us.
Based upon, subject to and limited by the foregoing, upon the
assumption that there will be no material changes in the documents we have
examined and the matters investigated referred to above, we are of the opinion
that, under the General Corporation Law of the State of Delaware:
(i) the 1,750,000 shares of Common Stock issuable or
issued pursuant to the 1996 Plan have been duly
authorized by the Company and, when and as issued and
delivered upon the exercise of options in the manner
and on the terms described in the 1996 Plan and for
legal consideration of not less than $0.01 per share,
will be or have been validly issued, fully paid and
nonassessable; and
(ii) the 100,000 shares of Common Stock issuable pursuant
to the Warrants have been duly authorized by the
Company and, when issued and delivered upon the
exercise of such Warrants in the manner and on the
terms described in the Warrants, will be validly
issued, fully paid and nonassessable.
This letter does not address any matters other than those expressly
addressed herein. This letter is given for your sole benefit and use. No one
else is entitled to rely hereupon. This letter speaks only as of the date
hereof. We undertake no responsibility or obligation to update or supplement it
after such date or to advise you of any changes in the foregoing subsequent to
the delivery of this opinion.
2
<PAGE>
We hereby consent to your filing of this opinion as Exhibit 5 to the
Registration Statement. By giving such consent we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the rules and regulations of the
Securities and Exchange Commission thereunder.
Sincerely yours,
/s/ Arnold & Porter
3
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm in the Registration Statement
on Form S-8 pertaining to the EntreMed, Inc. 1992 Stock Incentive Plan and
EntreMed, Inc. Amended and Restated 1996 Stock Option Plan and Certain
Compensatory Stock Warrants of EntreMed, Inc. for the registration of 1,850,000
shares of its common stock and to the incorporation by reference therein of our
report dated February 5, 1998, with respect to the consolidated financial
statements of EntreMed, Inc. included in its Annual Report on Form 10-K for the
year ended December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Atlanta, Georgia
November 6, 1998
EXHIBIT 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each undersigned director and/or
officer of EntreMed, Inc. a corporation organized under the laws of the state of
Delaware (the "Corporation"), hereby constitutes and appoints John W. Holaday,
Robert B. Ott and Richard E. Baltz and each of them (with full power to each of
them to act alone), his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her on his or her
behalf and in his or her name, place and stead, in any and all capacities, to
sign, execute and affix his or her seal to and file with the Securities and
Exchange Commission (or any other governmental or regulatory authority) a
Registration Statement on Form S-8 or any other appropriate form and all
amendments or supplements (including post-effective amendments) thereto with all
exhibits and any and all documents required to be filed therewith or with
respect thereto, relating to the registration of shares of common stock, par
value $0.01 per share, of the Corporation (the "Common Stock") issuable pursuant
to the Corporation's Amended and Restated 1996 Stock Option Plan, the
Corporation's 1992 Stock Incentive Plan and the exercise of certain issued
compensatory warrants to purchase Common Stock, and grants to each of them full
power and authority to do and to perform each and every act and thing requisite
and necessary to be done in and about the premises in order to effectuate the
same as fully and to all intents and purposes as he himself or she herself might
or could do if personally present, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, may lawfully do or cause to be
done by virtue hereof.
IN WITNESS HEREOF, the undersigned director and/or officer has hereunto
set his or her hand and seal, as of the date specified.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ John W. Holaday Chairman of the Board, President and November 9, 1998
- ------------------- Chief Executive Officer (Principal Executive Officer)
John W. Holaday, Ph.D.
/s/ R. Nelson Campbell Vice President and Chief Financial Officer November 9, 1998
- ---------------------- (Principal Financial and Accounting Officer)
R. Nelson Campbell
/s/ Samuel R. Dunlap Executive Advisor and Director November 9, 1998
- --------------------
Samuel R. Dunlap, Jr.
/s/ Donald S. Brooks Director November 9, 1998
- --------------------
Donald S. Brooks
<PAGE>
/s/ Jerry Finkelstein Director November 9, 1998
- ---------------------
Jerry Finkelstein
/s/ Lee F. Meier Director November 9, 1998
- ----------------
Lee F. Meier
/s/ Mark C.M. Randall Director November 9, 1998
- ---------------------
Mark C.M. Randall
/s/ Wendell M. Starke Director November 9, 1998
- ---------------------
Wendell M. Starke
</TABLE>
2
