<PAGE> 1
As filed with the Securities and Exchange Commission on April 3, 2000
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INKINE PHARMACEUTICAL COMPANY, INC.
(Exact name of registrant as specified in its charter)
NEW YORK 13-3754005
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
SENTRY PARK EAST
1720 WALTON ROAD
BLUE BELL, PA 19422
(Address of Principal Executive Offices) (Zip Code)
400,000 SHARES OF COMMON STOCK ISSUED
PURSUANT TO WRITTEN COMPENSATION CONTRACTS
(Full title of the plan)
LEONARD S. JACOB, M.D., PH.D.
CHIEF EXECUTIVE OFFICER
INKINE PHARMACEUTICAL COMPANY, INC.
SENTRY PARK EAST
1720 WALTON ROAD
BLUE BELL, PA 19422
(Name and address of agent for service)
(610) 260-9350
(Telephone number, including area code, of agent for service)
Copy to:
CHARLES C. ZALL, ESQUIRE
SAUL, EWING, REMICK & SAUL LLP
CENTRE SQUARE WEST
1500 MARKET STREET, 38TH FLOOR
PHILADELPHIA, PA 19102-2186
(215) 972-8660
See next page for calculation of registration fee.
<PAGE> 2
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum Maximum
Title of Securities to Amount to be Offering Price Aggregate Amount of
be Registered Registered Per Share Offering Price Registration Fee(3)
- ---------------------- ------------ ---------------- -------------- --------------------
<S> <C> <C> <C> <C>
Common Stock, Par 300,000(1) $0.61 $74.72
Value $0.0001 Per
Share $283,000
Common Stock, Par 100,000(2) $1.00
Value $0.0001 Per
Share
</TABLE>
(1) Represents shares issuable upon exercise of options previously granted
to Leonard S. Jacob, M.D., Ph.D. pursuant to a written compensation
contract dated November 6, 1997, the beneficial ownership of which was
subsequently transferred to Terri Jacob (Doctor Jacob's former spouse)
pursuant to a Qualified Domestic Relations Order entered into on
October 27, 1998.
(2) Represents shares issuable upon exercise of options previously granted
to Leonard S. Jacob, M.D., Ph.D. pursuant to a written compensation
contract dated November 6, 1997, the beneficial ownership of which was
subsequently transferred to Terri Jacob (Doctor Jacob's former spouse)
pursuant to a Qualified Domestic Relations Order entered into on
October 27, 1998.
(3) The registration fee with respect to these shares has been computed in
accordance with paragraph (c) and (h) of Rule 457, based upon the
stated exercise price of such options.
<PAGE> 3
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.(1)
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.(1)
- ----------
(1) The documents containing the information specified in Part I (plan
information and registrant information) of this registration statement
will be sent or given to the beneficial owner of the options granted
pursuant to the written compensation contracts (each a "Plan" and
collectively referred to as the "Plans") as specified by Rule 428(b)(1)
of the Securities Act of 1933, as amended (the "Securities Act"). Each
Plan grants options to purchase shares of common stock of InKine
Pharmaceutical Company, Inc. ("InKine"). The Plans are written
compensation contracts between InKine and Leonard S. Jacob, M.D., Ph.D.
Pursuant to a Qualified Domestic Relations Order (the "QDRO"), entered
into on October 27, 1998, certain options granted under the Plans have
been transferred to Terri Jacob, the former spouse of Leonard S. Jacob,
M.D., Ph.D. The options transferred pursuant to the QDRO and the
underlying shares of common stock of InKine are the subject of this
registration statement. The documents containing the information
specified in Part I are not required to be, and are not, filed with the
Securities and Exchange Commission either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule
424. These documents and the documents incorporated by reference in
this registration statement pursuant to Item 3 of Part II of this
registration statement, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
1
<PAGE> 4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (d) below are incorporated by
reference in this registration statement; and all documents subsequently filed
by InKine pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, prior to the filing of a post-effective amendment which
indicates that all securities offered 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 thereof from the date
of filing of such documents:
(a) InKine's annual report on Form 10-K for the fiscal year ended
June 30, 1999.
(b) InKine's report on Form 8-K, dated October 1, 1999.
(c) InKine's quarterly reports on Forms 10-Q for the quarterly
periods ended December 31, 1999 and September 30, 1999.
(d) The description of InKine's Common Stock which is contained in
any Registration Statement or report of InKine filed under the
Securities Exchange Act of 1934, including any amendments or
reports filed for the purposes of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL.
Not applicable.
2
<PAGE> 5
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721-726 of the New York Business Corporation Law empower a
corporation to indemnify any person, made, or threatened to be made, a party to
an action or proceeding, other than one by or in the right of the corporation,
whether civil or criminal, by reason of the fact that he or she was a director
or officer of the corporation or served such corporation in any capacity. A
corporation is empowered to indemnify such director or officer against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees, if such director or officer acted, in good faith, for a purpose
which he or she reasonably believed to be in the best interest of the
corporation and, in criminal actions or proceedings, had no reasonable cause to
believe that his or her conduct was unlawful.
InKine's Certificate of Incorporation provides that the directors of
InKine shall not be liable for damages for any breach of duty as directors,
except that a director shall be liable if a judgment or other final adjudication
adverse to such director establishes that his acts or omissions were in bad
faith or involved intentional misconduct or a knowing violation of law, or that
he personally gained a financial profit or other advantage to which he was not
legally entitled or that his acts violated Section 719 of the New York Business
Corporation Law.
InKine's Bylaws provide that the directors and officers of InKine shall
be indemnified and held harmless by InKine to the fullest extent currently
authorized by the New York Business Corporation Law. These provision indemnify
these persons against all expenses, liabilities, and losses that are reasonably
incurred or suffered. Further, the Bylaws provide for the advancement of
expenses to persons eligible for indemnification. In addition, the Bylaws
authorize InKine to maintain insurance to protect itself and any director or
officer of InKine against any expense, liability, or loss, whether or not InKine
would have the power to indemnify such persons against such expense, liability,
or loss under the New York Business Corporation Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of exhibits filed as part of the Registration
Statement:
5 Opinion of Saul, Ewing, Remick & Saul LLP
23.1 Consent of KPMG LLP, independent auditors
23.2 Consent of Richard A. Eisner & Company, LLP, independent
auditors
23.3 Consent of Saul, Ewing, Remick & Saul LLP (contained in
Exhibit No. 5)
24 Power of Attorney (included on signature page of the
Registration Statement)
3
<PAGE> 6
ITEM 9. UNDERTAKINGS.
A. RULE 415 OFFERING.
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 ("Securities Act"), unless the information
required to be included in such post-effective amendment is contained in a
periodic report required to be filed by the registrant or plan pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 ("Exchange Act") that
is incorporated herein by reference;
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, unless the information required to be included in such
post-effective amendment is contained in a periodic report required to be filed
by the registrant or plan pursuant to Section 13 or 15(d) of the Exchange Act
that is incorporated herein by reference;
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.
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. FILINGS INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY
REFERENCE.
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.
4
<PAGE> 7
C. FILING OF REGISTRATION STATEMENT ON FORM S-8
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 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.
5
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
InKine certifies that it has reasonable grounds to believe that it meets 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 Blue Bell, Pennsylvania, on March 31, 2000.
InKine Pharmaceutical Company, Inc.
By: /s/ Leonard S. Jacob, M.D., Ph.D.
---------------------------------
Leonard S. Jacob, M.D., Ph.D.
Chairman of the Board and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Dr. Leonard S. Jacob and Robert
F. Apple, or either of them, his true and lawful attorneys-in-fact, with power
of substitution and resubstitution, to execute in the name of such person, in
his capacity as a director or officer of InKine Pharmaceutical Company, Inc.,
any and all amendments to this Registration Statement on Form S-8 and all
instruments necessary or incidental in connection therewith, and to file the
same with the Securities and Exchange Commission, hereby ratifying and
confirming all that said attorneys-in-fact, or his substitute, 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 on March 31, 2000, by the following
persons in the capacities indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Leonard S. Jacob, M.D., Ph.D. Chairman of the Board, March 31, 2000
- ---------------------------------- Chief Executive Officer and Director
Leonard S. Jacob, M.D., Ph.D. (Principal Executive Officer)
/s/ Robert F. Apple Senior Vice President, and Chief March 31, 2000
- ---------------------------------- Financial Officer
Robert F. Apple (Principal Financial Officer)
/s/ Martin Rose, M.D., J.D. Senior Vice President Clinical March 31, 2000
- ---------------------------------- Research and Regulatory Affairs
Martin Rose, M.D., J.D.
/s/ J.R. LeShufy Director March 31, 2000
- ----------------------------------
J.R. LeShufy
</TABLE>
6
<PAGE> 9
<TABLE>
<S> <C> <C>
/s/ Steven B. Ratoff Director March 31, 2000
- ----------------------------------
Steven B. Ratoff
/s/ Thomas P. Stagnaro Director March 31, 2000
- ----------------------------------
Thomas P. Stagnaro
/s/ Robert A. Vukovich, Ph.D. Director March 31, 2000
- ----------------------------------
Robert A. Vukovich, Ph.D.
/s/ Jerry A. Weisbach, Ph.D. Director March 31, 2000
- ----------------------------------
Jerry A. Weisbach, Ph.D.
</TABLE>
7
<PAGE> 10
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Name of Document
------ ----------------
<S> <C>
5 Opinion of Saul, Ewing, Remick & Saul LLP
23.1 Consent of KPMG LLP, independent auditors
23.2 Consent of Richard A. Eisner & Company, LLP, independent auditors
23.3 Consent of Saul, Ewing, Remick & Saul LLP (contained in Exhibit No.
5)
24 Power of Attorney (included on signature page of the Registration
Statement)
</TABLE>
8
<PAGE> 1
EXHIBIT 5
[Saul, Ewing, Remick & Saul LLP Letterhead]
March 31, 2000
InKine Pharmaceutical Company, Inc.
Sentry Park East
1720 Walton Road
Blue Bell, PA 19422
Gentlemen:
We refer to the Registration Statement on Form S-8 (the "Registration
Statement") of InKine Pharmaceutical Company, Inc., a New York corporation (the
"Company"), to be filed with the Securities and Exchange Commission covering the
registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 400,000 shares of common stock, par value $0.0001 per share, of the
Company (the "Shares"), which Shares are to be issued to Terri Jacobs pursuant
to a Qualified Domestic Relations Order, entered into on October 27, 1998,
relating to options issuable under certain written compensation contracts
between the Company and Leonard S. Jacob, M.D., Ph.D.
We have reviewed the Registration Statement, the Certificate of
Incorporation and By-laws of the Company and such records, certificates and
other documents as we have considered necessary or appropriate for the purposes
of this Opinion.
Based on the foregoing, it is our opinion that:
1. The Company is duly organized, validly existing and in good standing
under the laws of State of New York; and
2. The Shares to be issued in accordance with the terms described in
the Registration Statement have been duly authorized and, when issued in
accordance with the terms described in the Registration Statement, will be
validly issued, fully paid and non-assessable.
We hereby consent to use of our name in the Registration Statement as
counsel who will pass upon the legality of the Shares for the Company and as
having prepared this Opinion as an exhibit to the Registration Statement. In
giving the foregoing consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
/s/ SAUL, EWING, REMICK & SAUL LLP
<PAGE> 1
EXHIBIT 23.1
Consent of Independent Auditors
The Board of Directors
InKine Pharmaceutical Company, Inc.:
We consent to the incorporation by reference in the
registration statement on Form S-8 of InKine Pharmaceutical Company, Inc. of our
report dated August 11, 1999, relating to the balance sheets of InKine
Pharmaceutical Company, Inc. as of June 30, 1999 and 1998, and the related
statements of operations, changes in shareholders' equity, and cash flows for
the years then ended, which report appears in the June 30, 1999, annual report
on Form 10-K of InKine Pharmaceutical Company, Inc.
/s/ KPMG LLP
Philadelphia, PA.
March 30, 2000
<PAGE> 1
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
InKine Pharmaceutical Company, Inc.:
We consent to the incorporation by reference in the
Registration Statement on Form S-8, relating to 400,000 shares of common stock,
par value $0.0001 per share, of InKine Pharmaceutical Company, Inc. issuable
pursuant to certain written compensation contracts between the Company and
Leonard S. Jacob, M.D., Ph.D, of our report dated July 24, 1997 on the financial
statements of InKine Pharmaceutical Company, Inc. (formerly Panax Pharmaceutical
Company Ltd.) included in the June 30, 1999, annual report on Form 10-K of
InKine Pharmaceutical Company, Inc.
/s/ Richard A. Eisner & Company, LLP
New York, New York
March 30, 2000
