As filed with the Securities and Exchange Commission on April 19, 2013
|Registration No. 333-|
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction of||(I.R.S. Employer|
|incorporation or organization)||Identification No.)|
|9620 Medical Center Drive, Suite 300, Rockville, MD||20850|
|(Address of Principal Executive Offices)||(Zip Code)|
EntreMed, Inc. 2011 Long-Term Incentive
New Employee Inducement Grant Program
(Full title of the plan)
Cynthia W. Hu, Esq.
Chief Operating Officer, General Counsel and Secretary
9620 Medical Center Drive, Suite 300
Rockville, MD 20850
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
Richard E. Baltz, Esq.
Arnold & Porter LLP
555 Twelfth Street NW
Washington, DC 20004
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
|Large accelerated filer ¨||Accelerated filer ¨|
|Non-accelerated filer ¨ (Do not check if a smaller reporting company)||Smaller Reporting Company x|
CALCULATION OF REGISTRATION FEE
|Title of Securities to be Registered||Amount|
|Common Stock, par value $0.01 per share:|
|To be issued upon exercise of options and pursuant to other awards of common stock granted under the EntreMed, Inc. 2011 Long-Term Incentive Plan (3)||5,850,000 shares||$||2.065||$||12,080,250||$||1,647.75|
|To be issued upon exercise of options granted as inducements to new employees (4)||150,000 shares||$||2.065||$||309,750||$||42.25|
(1) In addition to the shares set forth in the table, pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), the number of shares registered includes an indeterminable number of shares of common stock issuable under the EntreMed, Inc. 2011 Long-Term Incentive Plan, as this amount may be adjusted as a result of stock splits, stock dividends and antidilution provisions.
(2) Estimated pursuant to Rule 457(c) and (h) solely for the purposes of calculating the amount of the registration fee.
The fee with respect to the shares registered herein was based on the average of the high and low price per share of the
Common Stock on April 16, 2013, as reported on the Nasdaq Capital Market.
(3) Represents shares reserved for issuance upon exercise of stock options and pursuant to other awards of common stock granted under the EntreMed, Inc. 2011 Long-Term Incentive Plan.
(4) Represents additional shares issuable upon exercise of options granted to new employees as inducements pursuant to Rule 5635(c)(4) of the NASDAQ Stock Market Marketplace Rules.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participating employees as specified by Rule 428(b)(1) of the Securities Act. These document(s) and the documents incorporated by reference herein pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission are hereby incorporated by reference in this Registration Statement:
|a)||our Annual Report filed on Form 10-K for the fiscal year ended December 31, 2012;|
|b)||our Definitive Proxy Statement on Schedule 14A, filed on April 16, 2013;|
|c)||the description of our common stock contained in our Registration Statement on Form 8-A filed on May 14, 1996, including any amendment or report filed for the purpose of updating such description.|
In addition, all documents that we file pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment that either indicates that all securities offered hereby have been sold or deregisters all 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 that 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.
Item 5. Interests of Named Experts and Counsel.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (“DGCL”), permits, under certain circumstances, the indemnification of any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving in a similar capacity for another enterprise at the request of the corporation. To the extent that a director, officer, employee or agent of the corporation has been successful in defending any such proceeding, the DGCL provides that he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection therewith. With respect to a proceeding by or in the right of the corporation, such person may be indemnified against expenses (including attorneys’ fees), actually and reasonably incurred, 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. The DGCL provides, however, that indemnification shall not be permitted in such a proceeding if such person is adjudged liable to the corporation unless, and only to the extent that, the court, upon application, determines that he is entitled to indemnification under the circumstances. With respect to proceedings other than those brought by or in the right of the corporation, notwithstanding the outcome of such a proceeding, such person may be indemnified against judgments, fines and amounts paid in settlement, as well as expenses, 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, had no reason to believe his conduct was unlawful. Except with respect to mandatory indemnification of expenses to successful defendants as described in the preceding paragraph or pursuant to a court order, the indemnification described in this paragraph may be made only upon a determination in each specific case (1) by majority vote of the directors that are not parties to the proceeding, even though less than a quorum, or (2) by a committee of the directors that are not a party to the proceeding who have been appointed by a majority vote of directors who are not a party to the proceeding, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
The DGCL permits a corporation to advance expenses incurred by a proposed indemnitee in advance of final disposition of the proceeding, provided that the indemnitee undertakes to repay such advanced expenses if it is ultimately determined that he is not entitled to indemnification. Also, a corporation may purchase insurance on behalf of an indemnitee against any liability asserted against him in his designated capacity, whether or not the corporation itself would be empowered to indemnify him against such liability. We have adopted provisions in our Amended and Restated Certificate of Incorporation that provide for indemnification of our officers and directors to the maximum extent permitted under the DGCL. As authorized by the DGCL, our Amended and Restated Certificate of Incorporation limits the liability of our directors for monetary damages. The effect of this provision is to eliminate the rights of our company and our stockholders to recover monetary damages against a director for breach of the fiduciary duty of care as a director except in certain limited situations. This provision does not limit or eliminate our rights or the rights of any stockholder to seek non-monetary relief such as an injunction or rescission in the event of a breach of a director’s duty of care. This provision will not alter the liability of directors under federal securities laws. We have purchased an insurance policy that purports to insure our officers and directors against certain liabilities incurred by them in the discharge of their functions as such officers and directors. The foregoing descriptions are only general summaries. For additional information we refer you to the full text of our Amended and Restated Certificate of Incorporation, filed on August 9, 2006 as an Exhibit to our Quarterly Report on Form 10-Q, which we incorporate with this filing by reference.
Item 7. Exemption from Registration Claimed.
Item 8. Exhibits.
The exhibits to this Registration Statement are described in the Exhibit Index below.
Item 9. Undertakings.
(a) Rule 415 offering. The 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;
(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. 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 end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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) do not apply the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Securities and Exchange Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement; and
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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.
(4) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) Filing incorporating subsequent Exchange Act documents by reference. The Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of its annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
Pursuant to the requirements of the Securities Act of 1933, as amended (the “Securities Act”), 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 Rockville, State of Maryland, on April 19, 2013.
|DATE: April 19, 2013||By:||/s/ Cynthia W. Hu|
|Name: Cynthia W. Hu|
|Title: Chief Operating Officer, General Counsel & Secretary|
We, the undersigned directors and officers of EntreMed, Inc., a Delaware corporation, do hereby constitute and appoint Ken. K Ren, Chief Executive Officer, Cynthia W. Hu, Chief Operating Officer, General Counsel & Secretary, and Sara B. Capitelli, Vice President, Finance & Principal Accounting Officer, and each and either of them, our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to do any and all acts and things in our names and on our behalf in our capacities as directors and officers and to execute any and all instruments for us and in our name in the capacities indicated below, which said attorneys and agents may deem necessary or advisable to enable said corporation to comply with the Securities Act and any rules, regulations and requirements of the SEC, in connection with this registration statement, or any registration statement for this offering under the Securities Act, including specifically, but without limitation, any and all amendments (including post-effective amendments) hereto; and we hereby ratify and confirm all that said attorneys and agents, or either of them, shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|/s/ Ken K. Ren||Chief Executive Officer||April 19, 2013|
|Ken K. Ren||(Principal Executive Officer)|
|/s/ Sara B. Capitelli||Vice President, Finance & Principal Accounting Officer (Principal Financial and Accounting Officer)||April 19, 2013|
|Sara B. Capitelli|
|/s/ Wei-Wu He||Director — Executive Chairman||April 19, 2013|
|/s/ Tak W. Mak||Director||April 19, 2013|
|Tak W. Mak|
|/s/ Dwight L. Bush||Director||April 19, 2013|
|Dwight L. Bush|
|/s/ Jennie C. Hunter-Cevera||Director||April 19, 2013|
|Jennie C. Hunter-Cevera|
|/s/ Y. Alexander Wu||Director||April 19, 2013|
|Y. Alexander Wu|
|/s/ James Huang||Director||April 19, 2013|
INDEX TO EXHIBITS
|4.1||Amended and Restated Certificate of Incorporation of EntreMed, Inc., as amended (incorporated by reference to Exhibit 3.1 of our Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on August 9, 2006)|
|4.2||Certificate of Amendment of Amended and Restated Certificate of Incorporation of EntreMed, Inc. (incorporated by reference to Exhibit 3.1 of our Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 2010)|
|4.3||Amended and Restated By-laws of EntreMed, Inc. (incorporated by reference to Exhibit 3.1 of our Current Report on Form 8-K filed with the Securities and Exchange Commission on December 12, 2007)|
|5.1||Opinion of Arnold & Porter LLP|
|23.1||Consent of Independent Registered Public Accounting Firm|
|23.2||Consent of Independent Registered Public Accounting Firm|
|23.3||Consent of Arnold & Porter LLP (included in Exhibit 5.1)|
|24.1||Power of Attorney (included on signature page)|