S-8 1 ds8.htm ADHEREX TECHNOLOGIES Adherex Technologies

As filed with the Securities and Exchange Commission on July 15, 2005

Registration No. 333-            

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

under

THE SECURITIES ACT OF 1933

 

 

Adherex Technologies Inc.

(Exact name of issuer as specified in its charter)

 

 

Canada   N/A

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

 

2300 Englert Drive, Suite G, Research Triangle Park, Durham, North Carolina 27713

(Address of Principal Executive Offices) (Zip Code)

 

 

Amended and Restated

Adherex Technologies Inc. Stock Option Plan

(Full title of the plans)

 

 

William P. Peters, MD, PhD, MBA

Chief Executive Officer and Chairman of the Board of Directors

Adherex Technologies Inc.

2300 Englert Drive, Suite G

Research Triangle Park

Durham, North Carolina 27713

(Name and address of agent for service)

 

(919) 484-8484

(Telephone number, including area code, of agent for service)

 

 

Copies to:

Donald R. Reynolds, Esq.

Wyrick Robbins Yates & Ponton LLP

4101 Lake Boone Trail, Suite 300

Raleigh, North Carolina 27607

(919) 781-4000

 

 

CALCULATION OF REGISTRATION FEE

Title of

securities to

be registered

   

Amounts to

be registered

    Proposed maximum
offering price
per share		     Proposed maximum
aggregate
offering price		     Amount of
registration fee		  

Common stock,

without par value

    8,000,000 shares    $ 0.33 (1)   $ 2,640,000 (1)   $ 310.73 (1)
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c), based on the average of the high and low prices for the common stock on the American Stock Exchange on July 14, 2005. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares that may be subject to grant or otherwise issuable after the operation of any such anti-dilution provisions.

 

Part II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents heretofore filed by Adherex Technologies Inc. (the “Company”) with the Securities and Exchange Commission (the “Commission”) are incorporated herein by reference:

 

(a) The Company’s Registration Statement on Form 20-F (File No. 001-32295) filed on November 5, 2004, as amended (the “Registration Statement on Form 20-F”);

 

(b) The Company’s Transition Report on Form 20-F for the period from July 1, 2004 to December 31, 2004 filed pursuant to Section 13 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”);

 

(c) All other reports filed pursuant to Section 13 of the Exchange since December 31, 2004; and

 

(d) The description of the Company’s shares of common stock, without par value, contained in the Registration Statement on 20-F, including any further amendments or reports filed hereafter for the purpose of updating such description.

 

All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment that indicates that all securities offered under this registration statement have been sold or that deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such documents.

 

Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof 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 statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or superseded.

 

Item 4. Description of Securities.

 

Not applicable. The class of securities to be offered is registered under Section 12 of the Exchange Act.

 

Item 5. Interests of Named Experts and Counsel.

 

The legality of the issuance of the Common Shares offered hereby will be passed upon for the Company by LaBarge Weinstein LLP, Kanata, Ontario, Canada, counsel to the Company. Attorneys at LaBarge Weinstein LLP hold an aggregate of 76,335 shares of the Company’s Common Stock and options to purchase an aggregate of 200,000 shares of the Company’s Common Stock at $0.3275 Canadian per share.

 

Item 6. Indemnification of Directors and Officers.

 

Under the Canada Business Corporations Act (the “CBCA”), a corporation may indemnify a director or officer of the corporation, a former director of the corporation, or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or

 

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other proceeding in which the individual is involved because of that association with the corporation or other entity, if (a) the individual acted honestly and in good faith with a view to the best interests of the corporation, or as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request, and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful. Where the action is a derivative action by or on behalf of the corporation or such other entity, the approval of the court is also required.

 

The Company’s Bylaws provide that it shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Company’s request as a director or officer of a body corporate of which the Company is or was a shareholder or creditor, and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Company or such body corporate, if (a) he acted honestly and in good faith with a view to the best interests of the Company; and (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Company shall also indemnify such person in such other circumstances as the CBCA or law permits or requires.

 

The Company maintains liability insurance policies insuring the Company’s directors and officers against certain liabilities that they may incur in such capacities.

 

Insofar as indemnification for liabilities arising under the Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8. Exhibits.

 

The following exhibits are filed as part of this Registration Statement:

 

Exhibit
Number
  

Description of Document

    Registrant’s
Form
    Dated
    Exhibit
Number
    Filed
Herewith
    Articles of Incorporation of 3292835 Canada Inc. dated September 3, 1996.    20-F    11/5/04    1.1     
    Articles of Incorporation of 3521443 Canada Inc. dated August 14, 1998.    20-F    11/5/04    1.2     
    Articles of Amendment dated September 18, 1998.    20-F    11/5/04    1.3     
    Articles of Amendment dated August 18, 2000.    20-F    11/5/04    1.4     
    Articles of Amendment dated October 18, 2000.    20-F    11/5/04    1.5     
    Articles of Amalgamation dated April 30, 2001.    20-F    11/5/04    1.6     
    Articles of Amalgamation dated June 29, 2004.    20-F    11/5/04    1.7     
    Bylaws of the Registrant, as amended on November 2, 2004.    20-F    11/5/04    1.8     
    Stock Option Agreement, dated as of December 30, 2003, by and between Adherex Technologies Inc. and William P. Peters, MD, PhD, MBA.    20-F    11/5/04    1.9     
5.1   Opinion of LaBarge Weinstein LLP.                   X
10.9   Amended and Restated Adherex Technologies Inc. Stock Option Plan.                   X
23.1   Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.                   X
23.2   Consent of LaBarge Weinstein LLP (included in Exhibit 5.1).                   X
24.1   Power of Attorney (see page S-1).                   X

 

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Item 9. Undertakings.

 

(a) 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 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 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; and

 

(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) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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 therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(h) 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

 

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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, the Company 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 Durham, State of North Carolina, on the 15th day of July 2005.

 

ADHEREX TECHNOLOGIES INC.

By:

  

/s/ William P. Peters, MD, PhD, MBA

   

William P. Peters, MD, PhD, MBA

    Chief Executive Officer and Chairman of the Board of Directors

 

POWER OF ATTORNEY

 

Each person whose signature appears below constitutes and appoints William P. Peters, MD, PhD, MBA, and James A. Klein, Jr., CPA, and each of them, his true and lawful attorney-in-fact and agent, with full powers of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, this Form S-8 has been signed below by the following persons in the capacities and on the date indicated.

 

Signature

   

Title

  

Date

/s/ William P. Peters, MD, PhD, MBA

William P. Peters, MD, PhD, MBA

    Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer)   July 15, 2005

/s/ James A. Klein, Jr., CPA

James A. Klein, Jr., CPA

    Chief Financial Officer (Principal Financial and Accounting Officer)   July 15, 2005

/s/ Robin J. Norris, MB BS

Robin J. Norris, MB BS

    President, Chief Operating Officer and Director   July 15, 2005

/s/ Raymond Hession

Raymond Hession

    Lead Independent Director of the Board of Directors   July 15, 2005

/s/ Peter Karmanos, Jr.

Peter Karmanos, Jr.

   

Director

   July 15, 2005

 

S-1

/s/ Donald W. Kufe, MD

Donald W. Kufe, MD

    Director   July 15, 2005

/s/ Fred H. Mermelstein, PhD

Fred H. Mermelstein, PhD

    Director   July 15, 2005

/s/ Peter Morand, PhD

Peter Morand, PhD

    Director   July 15, 2005

/s/ Arthur T. Porter, MD, MBA

Arthur T. Porter, MD, MBA

    Director   July 15, 2005

 

S-2

EXHIBIT INDEX

 

Exhibit
Number
  

Description of Document

    Registrant’s
Form
    Dated
    Exhibit
Number
    Filed
Herewith
    Articles of Incorporation of 3292835 Canada Inc. dated September 3, 1996.    20-F    11/5/04    1.1     
    Articles of Incorporation of 3521443 Canada Inc. dated August 14, 1998.    20-F    11/5/04    1.2     
    Articles of Amendment dated September 18, 1998.    20-F    11/5/04    1.3     
    Articles of Amendment dated August 18, 2000.    20-F    11/5/04    1.4     
    Articles of Amendment dated October 18, 2000.    20-F    11/5/04    1.5     
    Articles of Amalgamation dated April 30, 2001.    20-F    11/5/04    1.6     
    Articles of Amalgamation dated June 29, 2004.    20-F    11/5/04    1.7     
    Bylaws of the Registrant, as amended on November 2, 2004.    20-F    11/5/04    1.8     
    Stock Option Agreement, dated as of December 30, 2003, by and between Adherex Technologies Inc. and William P. Peters, MD, PhD, MBA.    20-F    11/5/04    1.9     
5.1   Opinion of LaBarge Weinstein LLP.                   X
10.9   Amended and Restated Adherex Technologies Inc. Stock Option Plan.                   X
23.1   Consent of PricewaterhouseCoopers LLP, independent registered public accounting firm.                   X
23.2   Consent of LaBarge Weinstein LLP (included in Exhibit 5.1).                   X
24.1   Power of Attorney (see page S-1).                   X