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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 28, 1999
REGISTRATION NO. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NORTHFIELD LABORATORIES INC.
(Exact name of registrant as specified in its charter)
DELAWARE 36-3378733
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
1560 SHERMAN AVENUE
SUITE 1000
EVANSTON, ILLINOIS 60201-4800
(Address of registrant's principal executive offices)
NORTHFIELD LABORATORIES INC.
1999 STOCK OPTION PLAN
(Full title of the Plan)
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JACK J. KOGUT
VICE PRESIDENT - FINANCE
NORTHFIELD LABORATORIES INC.
1560 SHERMAN AVENUE
SUITE 1000
EVANSTON, ILLINOIS 60201-4800
(847) 864-3500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
CRAIG A. ROEDER, ESQ.
JENNER & BLOCK
601 13TH STREET, N.W.
WASHINGTON, D.C. 20005
(202) 639-6000
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CALCULATION OF REGISTRATION FEE
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Proposed maximum Proposed maximum
Title of Securities Amount to be offering aggregate Amount of
to be Registered registered price per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock of
Northfield Laboratories
Inc., par value $.01 per 500,000 $12.13* $6,065,000 $1,837.87
share.........
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* Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 and is based upon the average of the high and
low sale prices for the registrant's Common Stock reported on The Nasdaq
Stock Market, Inc. as quoted for May 26, 1999 in The Wall Street
Journal.
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PART I.
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing information specified by Part I of this Form
S-8 Registration Statement (the "Registration Statement") have been or will be
sent or given to participants in the plan listed on the cover of this
Registration Statement (the "Plan") as specified in Rule 428(b)(1) promulgated
by the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Securities Act"). Such document(s) are
not being filed with the Commission but constitute (along with the documents
incorporated by reference into the Registration Statement pursuant to Item 3 of
Part II hereof) a prospectus which meets the requirements of Section 10(a) of
the Securities Act.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange
Commission are incorporated in this Registration Statement by reference:
1. Annual Report on Form 10-K of Northfield Laboratories
Inc. (the "Company") for the fiscal year ended May 31, 1998;
2. Quarterly Report on Form 10-Q of the Company for the
fiscal quarter ended August 31, 1998;
3. Quarterly Report on Form 10-Q of the Company for the
fiscal quarter ended November 30, 1998;
4. Quarterly Report on Form 10-Q of the Company for the
fiscal quarter ended February 28, 1999; and
5. Description of the Common Stock of the Company included
in the Company's Registration Statement on Form S-1, Registration No. 33-76856,
as filed with the Commission on March 25, 1994, including any amendments or
reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), prior to the filing of a post-effective amendment which
indicates that all securities offered hereunder have been sold or which
deregisters all securities then remaining unsold, shall be deemed incorporated
in this Registration Statement by reference and to be a part hereof from the
date of the 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 General Corporation Law of the State of Delaware
provides that a corporation may indemnify any person who was or is a party to or
is threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative, 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 as a
director, officer, employee of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him in connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceedings, had no reasonable cause to believe his conduct was unlawful;
provided, however, in
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a suit by or in the right of the corporation no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought has determined upon application that, despite the adjudication
of liability but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity or such expenses deemed proper by
the court.
The Company's Restated Certificate of Incorporation provides that the
Company will indemnify its directors, officers, employees and agents to the
fullest extent permitted by Delaware law. The Company's Restated Certificate of
Incorporation additionally requires the Company to advance expenses incurred by
its directors, officers, employees and agents to the fullest extent permitted by
Delaware law in connection with any matter with respect to which such persons
may be entitled to seek indemnification.
The Company's Restated Certificate of Incorporation also provides that,
to the fullest extent permitted by Delaware law, the Company's directors will
not be liable for monetary damages for breach of the directors' fiduciary duty
of care to the Company and its stockholders. This provision does not eliminate
the duty of care and, in appropriate circumstances, equitable remedies such as
an injunction or other forms of non-monetary relief will remain available under
Delaware law. Each director will also continue to be subject to liability for
breach of the director's duty of loyalty to the Company or its stockholders, for
acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of law, for unlawful distributions to stockholders and for any
transaction from which the director derives an improper personal benefit. In
addition, this provision does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Company has purchased an insurance policy which purports to insure
the officers and directors of the Company against certain liabilities incurred
by them in the discharge of their functions as officers and directors, except
for liabilities resulting from their own malfeasance. The insurance policy
provides coverage in the amount of $10,000,000 for annual aggregate claims.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4 -- None.
5.1 -- Opinion of Jenner & Block.
15 -- None.
23.1 -- Consent of KPMG LLP.
23.2 -- Acknowledgment of Independent Certified Public
Accountants Regarding Independent Auditor's
Review Report.
23.3 -- The consent of Jenner & Block is contained in their
opinion filed as Exhibit 5.1 to
this Registration Statement.
24 -- None.
27 -- None.
28 -- None.
99 -- None.
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ITEM 9. UNDERTAKINGS
A. SUBSEQUENT DISCLOSURE.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, 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 this 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 this
Registration Statement;
(iii) 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;
provided however, that the undertakings set forth in paragraphs (i) and
(ii) above 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 Company pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference 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 herein, 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. INCORPORATION BY REFERENCE.
The 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. TRANSMIT CERTAIN MATERIAL
(1) The Company hereby undertakes to deliver or cause to be
delivered with the prospectus to each employee to whom the prospectus is sent or
given a copy of the Company's annual report to stockholders for its last fiscal
year, unless such employee otherwise has received a copy of such report in which
case the Company shall state in the prospectus that it will promptly furnish,
without charge, a copy of such report on written request of the employee. If the
last fiscal year of the Company has ended within 120 days prior to the use of
the prospectus, the annual report for the preceding year may be so delivered,
but within such 120 day period the annual report for the last fiscal year will
be furnished to each such employee.
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(2) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company
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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Evanston, State of Illinois, on May 27, 1999.
NORTHFIELD LABORATORIES INC.
By /s/ Richard E. DeWoskin
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Richard E. DeWoskin
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons on
behalf of the Company in the capacities indicated on May 27, 1999.
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<CAPTION>
SIGNATURE TITLE
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<S> <C>
/s/ Richard E. DeWoskin
- ----------------------------------------- Chairman of the Board and Chief Executive Officer
Richard E. DeWoskin (principal executive officer)
/s/ Steven A. Gould, M.D.
- ----------------------------------------- President, Director
Steven A. Gould, M.D.
/s/ Jack J. Kogut
- -----------------------------------------
Jack J. Kogut Vice President - Finance, Secretary and Treasurer
(principal financial officer and principal accounting
officer)
/s/ Gerald S. Moss, M.D.
- ----------------------------------------- Director
Gerald S. Moss, M.D.
/s/ Bruce S. Chelberg
- ----------------------------------------- Director
Bruce S. Chelberg
/s/ Jack Olshansky
- ----------------------------------------- Director
Jack Olshansky
/s/ David A. Savner
- ----------------------------------------- Director
David A. Savner
</TABLE>
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EXHIBIT 5.1
[Jenner & Block Letterhead]
May 26, 1999
Northfield Laboratories Inc.
1560 Sherman Avenue
Suite 1000
Evanston, Illinois 60201-4800
Gentlemen:
We have acted as counsel to Northfield Laboratories Inc., a Delaware
corporation (the "Company"), in connection with the Registration Statement on
Form S-8 (the "Registration Statement") filed by the Company under the
Securities Act of 1933, as amended, with the Securities and Exchange Commission
(the "Commission"), relating to the sale of up to 500,000 shares (the "Shares")
of the Company's Common Stock, par value $.01 per share, pursuant to the
Northfield Laboratories Inc. 1999 Stock Option Plan (the "Plan"). We have
examined the Registration Statement as filed by the Company with the Commission.
We have additionally reviewed such other documents and have made such further
investigations as we have deemed necessary to enable us to express the opinion
hereinafter set forth.
Based on the foregoing, we hereby advise you that in our opinion the
Shares have been duly authorized by the Company and will, when issued in
accordance with the terms and conditions of the Plan, be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
JENNER & BLOCK
By /s/ Craig A. Roeder
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Craig A. Roeder
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EXHIBIT 23.1
CONSENT OF KPMG LLP
We consent to the use of our report dated July 6, 1998, relating to the balance
sheets of Northfield Laboratories Inc. as of May 31, 1998, and the related
statements of operations, shareholders' equity (deficit), and cash flows for
each of the years in the three-year period ended May 31, 1998 incorporated
herein by reference.
/s/ KPMG LLP
Chicago, Illinois
May 27, 1999
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EXHIBIT 23.2
ACKNOWLEDGMENT OF
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
REGARDING INDEPENDENT AUDITOR'S REVIEW REPORT
The Board of Directors
Northfield Laboratories Inc.
With respect to the registration statements on Form S-8 of Northfield
Laboratories Inc., we acknowledge our awareness of the incorporation by
reference of our reports dated September 25, 1998, December 21, 1998, and March
31, 1999 related to our reviews of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not
considered part of a registration statement prepared or certified by an
accountant or a report prepared or certified by an accountant within the
meaning of sections 7 and 11 of the Act.
/s/ KPMG LLP
Chicago, Illinois
May 27, 1999
