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As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INKINE PHARMACEUTICAL COMPANY, INC.
(Exact name of registrant as specified in its charter)
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New York 13-3754005
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Sentry Park East
1720 Walton Road
Blue Bell, Pa 19422
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(Address of Principal Executive Offices) (Zip Code)
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1999 EQUITY COMPENSATION PLAN
(Full title of the plan)
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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)
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(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
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See next page for calculation of registration fee.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities to Amount to be Offering Price Aggregate Amount of Registration Fee
be Registered Registered Per Share Offering Price
----------------------- --------------- ------------------ ----------------- -----------------------------------
<S> <C> <C> <C> <C>
Common Stock, Par 1,000,000 $ 3.70(1) $ 3,700,000 $ 976.80
Value $0.0001 Per
Share
================================================================================================================
</TABLE>
(1) The registration fee with respect to these shares has been computed
in accordance with paragraphs (c) and (h) of Rule 457, based upon the weighted
average of the stated exercise price of such options and shares.
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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)
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (c) 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, 2000;
(b) InKine's Current Reports on Form 8-K, dated August
11, 2000 and September 27, 2000; and
(c) 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.
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(1) The information called for by Part I of Form S-8 is currently included
in the description of the InKine's 1999 Equity Compensation Plan (the
"Plan") which is or will be delivered to each employee selected to
participate in the Plan in accordance with Rule 428 under the
Securities Act of 1933, as amended. Pursuant to the Note to Part I of
Form S-8, this information is not being filed with this Form S-8.
1
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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 Saul, Ewing, Remick & Saul LLP (contained in
Exhibit No. 5)
24 Power of Attorney (included on signature page of the
Registration Statement)
99 1999 Equity Compensation Plan
2
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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 propectus 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.
3
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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.
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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 September 29, 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.
NOTICE TO SIGNATORIES
The purpose of this Power of Attorney is to give Leonard S. Jacob,
M.D., Ph.D. and Robert F. Apple (each an "Agent" and together, the "Agents") the
power to execute certain documents related to this Registration Statement on
your behalf.
This Power of Attorney does not impose a duty on the Agents to exercise
granted powers, but when powers are exercised, they must use due care to act for
your benefit and in accordance with this Power of Attorney.
Agents may exercise the powers given here for the period during which
this registration statement is effective, even after you become incapacitated,
unless you expressly limit the duration of these powers or you revoke these
powers or a court acting on your behalf terminates the Agents' authority. A
court can take away the powers of the Agents if it finds the Agents are not
acting properly.
The powers and duties of an agent under a Power of Attorney are
explained more fully in 20 Pa. C.S. Ch. 56.
If there is anything about this form that you do not understand, you
should ask a lawyer of your own choosing to explain it to you.
5
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By signing below you are attesting that you have read or had explained
to you the above Notice and you understand its contents.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Leonard S. Jacob, M.D., Ph.D. Chairman of the Board, September 29, 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 September 29, 2000
-------------------- Financial Officer
Robert F. Apple (Principal Financial and
Accounting Officer)
/s/ J.R. LeShufy Director September 29, 2000
-----------------
J.R. LeShufy
/s/ Steven B. Ratoff Director September 29, 2000
---------------------
Steven Ratoff
/s/ Thomas P. Stagnaro Director September 29, 2000
-----------------------
Thomas P. Stagnaro
/s/ Robert A. Vukovich, Ph.D. Director September 29, 2000
------------------------------
Robert A. Vukovich, Ph.D.
/s/ Jerry A. Weisbach, Ph.D. Director September 29, 2000
-----------------------------
Jerry A. Weisbach, Ph.D.
</TABLE>
6
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ACKNOWLEDGEMENT OF AGENT
The undersigned have read the above Power of Attorney and acknowledge
that each of them, respectively, is the person identified as the agent for the
principals listed above. The undersigned hereby acknowledge that in the absence
of a specific provision to the contrary in the Power of Attorney or in 20 Pa.
C.S. when they, respectively, act as agent, each of them:
(i) shall exercise the powers for the benefit of the principal;
(ii) shall exercise reasonable caution and prudence; and
(iii) shall keep a full and accurate record of all actions on behalf of
the principal.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Leonard S. Jacob, M.D., Ph.D. Chairman of the Board, September 29, 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 September 29, 2000
-------------------- Financial Officer
Robert F. Apple (Principal Financial and
Accounting Officer)
</TABLE>
7
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EXHIBIT INDEX
Exhibit
Number Name of Document
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5 Opinion of Saul, Ewing, Remick & Saul LLP
23.1 Consent of KPMG LLP, independent auditors
23.2 Consent of Saul, Ewing, Remick & Saul LLP (contained in Exhibit No. 5)
24 Power of Attorney (included on signature page of the Registration
Statement)
99 1999 Equity Compensation Plan
8
