AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 23, 2003
REGISTRATION NO. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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.
STOCK OPTION PLAN
FOR NEW EMPLOYEES
(Full title of the Plan)
--------------------
JACK J. KOGUT
CHIEF FINANCIAL OFFICER
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.
BAKER & MCKENZIE
ONE PRUDENTIAL PLAZA
130 EAST RANDOLPH DRIVE
CHICAGO, ILLINOIS 60601
(312) 861-8000
-----------------------
CALCULATION OF REGISTRATION FEE
=========================== ===================== ===================== ===================== ======================
Title of Securities Amount to be Proposed maximum Proposed maximum Amount of
to be Registered registered offering aggregate registration fee
price per share offering price
--------------------------- --------------------- --------------------- --------------------- ----------------------
Common Stock of
Northfield Laboratories 350,000 $5.58* $1,953,000 $179.68
Inc., par value $.01 per
share.........
--------------------------------------------------------------------------------------------------------------------
* 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 January 21, 2003 in The Wall Street
Journal.
====================================================================================================================
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.
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, 2002;
2. Quarterly Report on Form 10-Q of the Company for the fiscal quarter
ended August 31, 2002;
3. Quarterly Report on Form 10-Q of the Company for the fiscal quarter
ended November 30, 2002; and
4. 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 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 is a party to separate indemnification agreements with each
of its directors and senior executive officers. These agreements require the
Company to indemnify its directors and executive officers to the maximum extent
permitted by law and to advance all expenses they may reasonably incurred in
connection with the defense of any claim or proceeding in which they may be
involved as a party or witness. The agreements specify certain procedures and
assumptions applicable in connection with requests for indemnification and
advancement of expenses and also require the Company to continue to maintain
directors and officers and fiduciary liability insurance for a six-year period
following any change in control transaction. The rights provided to the
Company's directors and executive officers under their indemnification
agreements are in addition to any other rights such individuals may have under
the Company's Restated Certificate of Incorporation or Bylaws, applicable law or
otherwise.
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
5.1 -- Opinion of Baker & McKenzie.
15.1 -- Letter Re: unaudited interim financial information.
23.1 -- Consent of KPMG LLP.
23.2 -- Consent of Baker & McKenzie (contained in their
opinion filed as Exhibit 5.1 to this Registration
Statement).
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 or furnished to the Commission 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.
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.
D. INDEMNIFICATION.
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.
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 January 21,
2003.
NORTHFIELD LABORATORIES INC.
By /s/ STEVEN A. GOULD, M.D.
----------------------------
Steven A. Gould, M.D.
Chairman 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 January 21, 2003.
SIGNATURE TITLE
--------- -----
/s/ STEVEN A. GOULD, M.D. Chairman of the Board and Chief Executive Officer
----------------------------------------------------------- (principal executive officer)
Steven A. Gould, M.D.
/s/ JACK J. KOGUT Chief Financial Officer, Secretary and Treasurer
----------------------------------------------------------- (principal financial officer and principal accounting officer)
Jack J. Kogut
/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
/s/ JOHN F. BIERBAUM Director
-----------------------------------------------------------
John F. Bierbaum
/s/ PAUL M. NESS, M.D. Director
-----------------------------------------------------------
Paul M. Ness, M.D.