As filed with the Securities and Exchange Commission on June 30, 1997
Registration No. 33-______
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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SYMBOLLON CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 36-3463683
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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122 Boston Post Road
Sudbury, MA 01776
(Address of principal executive offices) (Zip code)
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SYMBOLLON CORPORATION
1995 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
(Full title of the plan)
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Paul C. Desjourdy
Executive Vice President and Chief Financial Officer
Symbollon Corporation
122 Boston Post Road
Sudbury, MA 01776
(Name and address of agent for service)
(508) 443-0165
(Telephone number, including area code, of agent for service)
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Copy to:
Irwin M. Rosenthal, Esq.
Rubin Baum Levin Constant & Friedman
30 Rockefeller Plaza
New York, NY 10112
(212) 698-7700
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED PROPOSED
TITLE OF EACH MAXIMUM MAXIMUM
CLASS OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
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Class A Common Stock,
(par value $.001 per share). 100,000(3) $ 1.66 $ 166,000 $ 50.30
====================================================================================================================================
</TABLE>
(1) Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares as may become issuable pursuant to
terms designed to prevent dilution resulting from stock splits, stock dividends
or similar events. (2) The price of $1.66 per share, which was the average of
the high and low sales price of the Class A Common Stock on the NASDAQ SmallCap
Market on June 26, 1997, is set forth solely for the purpose of calculating the
registration fee pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act"). (3) Represents shares of Class A Common Stock
reserved for issuance pursuant to options available for grant under the
registrant's 1995 Non-Employee Directors' Stock Option Plan (the "Director
Option Plan").
<PAGE>
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1 PLAN INFORMATION.
ITEM 2 REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3 INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents or portions thereof, as filed with the
Securities and Exchange Commission (the "Commission") by Symbollon Corporation,
a Delaware Corporation (the "Registrant"), are incorporated herein by reference:
(1) the Registrant's Annual Report on Form 10-KSB for the year
ended December 31, 1996.
(2) the Registrant's Quarterly Report on Form 10-QSB for the
quarterly period ended March 31, 1997.
(3) the description of the Class A Common Stock, par value $.001 per
share ("Common Stock"), of the Registrant contained in the section entitled
"Description of Securities" of the Registrant's Registration Statement on Form
SB-2 declared effective on December 7, 1993 (File No. 33-68828) (which is
incorporated by reference in Item 1 of the Registrant's Registration Statement
on Form 8-A (File No. 0-22872) dated November 12, 1993 filed pursuant to Section
12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act")).
All documents subsequently filed by the Registrant pursuant to Section
13(a), 13(c), 14 or 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 of such 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 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
<PAGE>
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the issuance of the securities
offered hereby will be passed upon for the Company by Rubin Baum Levin Constant
& Friedman, New York, New York. Irwin M. Rosenthal, a partner of Rubin Baum
Levin Constant & Friedman, may be deemed to beneficially own 279,892 shares of
Common Stock of the Company, of which 277,372 shares of Common Stock are owned
of record by Magar, Inc., a privately held corporation of which Mr. Rosenthal is
a director, officer and a principal stockholder.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Reference is made to Section 145 of the Delaware General Corporation
Law (the "DGCL"), Article TENTH of the Registrant's Certificate of
Incorporation, as amended, Article VIII of the Registrant's By-Laws and the
Indemnification Agreements entered into with certain of the Registrant's
directors and officers.
Section 145 of the DGCL generally provides that a corporation is
empowered 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 with another
corporation or other enterprise, if such director, officer, employee or agent
acted in good faith and in a manner he reasonably believed 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 indemnify any such
person.
Pursuant to Article NINTH of the Registrant's Certificate of
Incorporation and Article VIII of the Registrant's By-Laws, the Registrant shall
indemnify, to the fullest extent permitted by the DGCL, any person, including
officers and directors, with regard to any action or proceeding.
The Registrant has entered into an indemnification agreement with its
directors and officers. Such agreement provides that the Registrant will
indemnify the indemnitee to the fullest extent permitted by applicable law
against expenses, including reasonable attorneys' fees, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with any civil or criminal action or administrative proceeding
arising out of his performance of his duties as a director or officer of the
Registrant other than an action initiated by a director or officer. Such
indemnification is available if the indemnitee acted in good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the Registrant, and with respect to any criminal action, had no reasonable cause
to believe his conduct was unlawful.
Under such indemnification agreement, the entitlement of a director or
officer to indemnification is determined by a majority vote of a quorum of
disinterested directors, or if such quorum either is not obtainable or so
directs, by independent counsel or by the stockholders or the Registrant, as
<PAGE>
determined by such quorum of disinterested directors. Under certain
circumstances, a party to the indemnification agreement is conclusively presumed
to have met the applicable statutory standard of conduct unless the Registrant's
Board of Directors, stockholders or independent legal counsel determine that the
relevant standard has not been met. If a change of control of the Registrant has
occurred, the entitlement of such director or officer to indemnification is
determined by independent counsel selected by such director or officer, unless
such director or officer requests that either the Board of Directors or the
stockholders make such determination. The Company currently has $3,000,000 of
Director and Officer liability insurance.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (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
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. See Item 17.
"Undertakings."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following is a complete list of exhibits filed as a part of this
Registration Statement:
Exhibit No. Document
----------- --------
5.1 Opinion of Rubin Baum Levin Constant & Friedman
regarding legality.
23.1 Consent of Rubin Baum Levin Constant & Friedman
(included in Exhibit 5.1).
23.2 Consent of Richard A. Eisner & Company, LLP.
24.1 Power of Attorney (included on signature page hereto)
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
(a) (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;
(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
<PAGE>
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 and 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 20 percent 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 (a)(1)(i) and (a)(1)(ii)of this
section do not apply if the Registration Statement is on Form S-3, Form S-8 or
Form F-3, and 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 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 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, 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.
(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 foregoing provisions, 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>
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 Sudbury, Commonwealth of Massachusetts, on June 30,
1997.
SYMBOLLON CORPORATION
(Registrant)
By: /s/ PAUL C. DESJOURDY
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Paul C. Desjourdy, Executive Vice
President and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby severally constitutes and appoints Paul C. Desjourdy and
Jack H. Kessler and each of them, his true and lawful attorneys-in-fact and
agents, each acting alone, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement on Form S-8 and all documents relating thereto, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and to make any and all state securities law
or blue sky filings, granting unto said attorneys-in-fact and agents, each
acting alone full power and authority to do and perform each and every act and
thing necessary or advisable to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, 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, or amendment thereto, has been signed below by the
following persons in the capacities and on the dates indicated:
Signature Title Date
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/s/ Jack H. Kessler Executive Vice-President, June 30, 1997
- --------------------------- Chief Scientific Officer,
Jack H. Kessler Secretary and Chairman
of the Board of Directors
(Principal Executive Officer)
/s/ Paul C. Desjourdy Executive Vice President June 30, 1997
- --------------------------- Treasurer, Chief Financial
Paul C. Desjourdy Officer, and Director (Principal
Financial and Accounting Officer)
/s/ Stuart M. Paley Director June 30, 1997
- ---------------------------
Stuart M. Paley
/s/ Edward A. Mason Director June 30, 1997
- ---------------------------
Edward A. Mason
/s/ James C. Richards Director June 30, 1997
- ---------------------------
James C. Richards
EXHIBIT 5.1
[LETTERHEAD OF RUBIN BAUM LEVIN CONSTANT & FREIDMAN]
June 30, 1997
Symbollon Corporation
122 Boston Post Road
Sudbury, Massachusetts 01776
Ladies and Gentlemen:
We have acted as counsel to Symbollon Corporation, a Delaware
corporation (the "Company"), in connection with the preparation of its
Registration Statement on Form S-8 under the Securities Act of 1993, as amended
(the "Registration Statement"), to which this opinion is to be filed as an
exhibit. The Registration Statement relates to the issuance of up to an
aggregate of 100,000 shares (the "Option Plan Shares") of the Company's Class A
Common Stock, par value $.001 per share (the "Common Stock"), pursuant to the
Company's 1995 Non-Employee Directors' Stock Option Plan, as amended (the
"Option Plan").
We have examined such corporate records, documents, agreements and
such matters of law as we have considered necessary or appropriate for purposes
of this opinion. Based upon the foregoing, we are of the opinion that the
Option Plan Shares, when issued upon exercise of and in accordance with the
terms of stock options duly and validly granted pursuant to the terms and
conditions of the Option Plan against payment therefor in accordance with the
terms of the Option Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the references to this firm under "Item
5. Interests of Named Experts and Counsel" therein. In giving this consent,
we do not thereby admit that we are in the category of persons whose
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
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Symbollon Corporation
June 30, 1997
Page 2
consent is required under Section 7 of the Securities Act of 1933, as amended,
and the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
RUBIN BAUM LEVIN CONSTANT & FRIEDMAN
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
of Symbollon Corporation (the "Company") on Form S-8 of our report dated
January 30, 1997 on the financial statements of the Company as at December 31,
1996 and December 31, 1995 and for each of the years in the two-year period
ended December 31, 1996 and for the period from July 15, 1986 (inception) to
December 31, 1996 appearing in the Company's annual report on Form 10-KSB for
its fiscal year ended December 31, 1996.
Richard A. Eisner & Company, LLP
Cambridge, Massachusetts
June 30,1997
