-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, RHtn0kArdmwbxm/zfW2GfTauuIa8tC/f+TUgYTrVe4oKMTS23flPHnkEuvrNmkrk WMirRhui26eQEI8E0OUN/A== 0000950129-03-004429.txt : 20030826 0000950129-03-004429.hdr.sgml : 20030826 20030826144532 ACCESSION NUMBER: 0000950129-03-004429 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20030826 EFFECTIVENESS DATE: 20030826 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ISOLAGEN INC CENTRAL INDEX KEY: 0000357097 STANDARD INDUSTRIAL CLASSIFICATION: PHARMACEUTICAL PREPARATIONS [2834] IRS NUMBER: 870458888 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-108219 FILM NUMBER: 03866330 BUSINESS ADDRESS: STREET 1: 2500 WILCREST STREET 2: 5TH FLOOR CITY: HOUSTON STATE: TX ZIP: 77042 BUSINESS PHONE: 713-780-4754 MAIL ADDRESS: STREET 1: 2500 WILCREST STREET 2: 5TH FLOOR CITY: HOUSTON STATE: TX ZIP: 77042 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN FINANCIAL HOLDING INC /DE DATE OF NAME CHANGE: 19960330 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN FINANCIAL HOLDING INC /CO DATE OF NAME CHANGE: 19921008 FORMER COMPANY: FORMER CONFORMED NAME: VIDTOR COMMUNICATIONS INC DATE OF NAME CHANGE: 19920721 S-8 1 h08697sv8.txt ISOLAGEN, INC. =============================================================================== SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ISOLAGEN, INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 87-0458888 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 2500 WILCREST, 5TH FLOOR HOUSTON, TEXAS 77042 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES AND ZIP CODE) 2001 STOCK OPTION AND APPRECIATION RIGHTS PLAN 2003 STOCK OPTION AND APPRECIATION RIGHTS PLAN (FULL TITLE OF THE PLANS) JEFFREY W. TOMZ CHIEF FINANCIAL OFFICER AND SECRETARY ISOLAGEN, INC. 2500 WILCREST, 5TH FLOOR HOUSTON, TEXAS 77042 (NAME AND ADDRESS OF AGENT FOR SERVICE) (713) 780-4754 (TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPY TO: SUSAN STRANAHAN CIALLELLA, ESQ. DILWORTH PAXSON LLP 3200 MELLON BANK CENTER 1735 MARKET STREET PHILADELPHIA, PENNSYLVANIA 19103-7595 (215) 575-7000
CALCULATION OF REGISTRATION FEE - ------------------------------------ -------------------- -------------------- -------------------- ------------------- TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF TO BE REGISTERED BE REGISTERED OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE PER SHARE PRICE - ------------------------------------ -------------------- -------------------- -------------------- ------------------- COMMON STOCK, $.001 PAR VALUE 7,150,000 SHARES(1) $ 6.292 (2) $ 44,985,989.25 (2) $ 3,639.37 - ------------------------------------ -------------------- -------------------- -------------------- -------------------
(1)PURSUANT TO RULE 416 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AN INDETERMINATE AMOUNT OF ADDITIONAL SHARES OF COMMON STOCK, WHICH MAY BECOME ISSUABLE PURSUANT TO THE ANTI-DILUTION PROVISIONS OF THE 2001 STOCK OPTION AND APPRECIATION RIGHTS PLAN AND THE 2003 STOCK OPTION AND APPRECIATION RIGHTS PLAN ARE ALSO BEING REGISTERED HEREUNDER. (2)ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE, PURSUANT TO RULE 457(H) UNDER THE SECURITIES ACT OF 1933, AS AMENDED, ON THE BASIS OF: (A) $5.324, THE WEIGHTED AVERAGE EXERCISE PRICE OF THE 4,296,350 SHARES OF COMMON STOCK SUBJECT TO OUTSTANDING STOCK OPTION GRANTS UNDER THE 2001 STOCK OPTION AND APPRECIATION RIGHTS PLAN; (B) $4.50, THE EXERCISE PRICE OF THE 1,320,000 SHARES OF COMMON STOCK SUBJECT TO OUTSTANDING STOCK OPTION GRANTS UNDER THE 2003 STOCK OPTION AND APPRECIATION RIGHTS PLAN; AND (C) $10.545, THE AVERAGE OF THE HIGH AND LOW PRICES FOR THE COMMON STOCK ON AUGUST 22, 2003, AS REPORTED BY THE AMERICAN STOCK EXCHANGE, FOR THE 603,650 SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UNDER STOCK OPTIONS TO BE GRANTED IN THE FUTURE UNDER THE 2001 STOCK OPTION AND APPRECIATION RIGHTS PLAN AND THE 930,000 SHARES OF COMMON STOCK RESERVED FOR ISSUANCE UNDER STOCK OPTIONS TO BE GRANTED IN THE FUTURE UNDER THE 2003 STOCK OPTION AND APPRECIATION RIGHTS PLAN. 2 This Registration Statement relates to a total of 7,150,000 shares of common stock, par value $.001 per share ("Common Stock") of Isolagen, Inc. (the "Company"), which may be offered and sold pursuant to options granted or which may be granted under the Company's 2001 Stock Option and Appreciation Rights Plan, as amended -- 4,900,000 shares -- and the 2003 Stock Option and Appreciation Rights Plan, as amended - 2,250,000 shares. ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents previously filed with the Commission by the Company are incorporated in this Registration Statement by reference: 1. the Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2002; 2. all other reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), since the end of the fiscal year covered by the registrant document referred to in (1) above; and 3. the description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed under the Exchange Act, including any amendment or report filed 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 of this registration statement and prior to the termination of the offering of the Common Stock 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 statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The law firm of Dilworth Paxson LLP has rendered an opinion regarding the legality of the shares of Common Stock registered hereunder. Ralph V. De Martino, a member of Dilworth Paxson LLP, is a member of the Board of Directors of the Company. On July 31, 2003, Mr. De Martino was the beneficial owner of 100,000 shares of Common Stock (including a total of 100,000 shares of Common Stock issuable upon exercise of certain options). ITEM 6. INDEMNIFICATION OF OFFICERS AND DIRECTORS The Company's certificate of incorporation, as amended (the "Certificate of Incorporation") and by-laws, as amended (the "By-Laws") contain certain provisions permitted under the General Corporation Law of Delaware, as amended (the "Delaware GCL") which eliminate the personal liability of directors for monetary damages for a breach of the director's fiduciary duty, except for: (i) breach of a director's duty of loyalty; (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) the unlawful payment of dividends, stock purchase or stock redemption, or (iv) any transaction from which the director derives any improper personal benefit. The Certificate of Incorporation and By-Laws also contain provisions indemnifying the Company's directors, officers and employees to the fullest extent permitted by the Delaware GCL. The Company's directors and officers are also insured against certain liabilities under a directors and officers liability insurance policy maintained by the Company. 3 ITEM 8. EXHIBITS Exhibit Number Description -------------- ----------- 4.1(1) 2001 Stock Option and Appreciation Rights Plan 4.2(2) 2003 Stock Option and Appreciation Rights Plan 5 Opinion of Dilworth Paxson LLP as to the legality of securities being registered 23.1 Consent of Pannell Kerr Forster of Texas, P.C. 23.2(3) Consent of Dilworth Paxson LLP 24(4) Power of Attorney of certain officers and directors of the Company __________________ (1) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's Definitive Proxy Statement in connection with the Registrant's 2001 Annual Meeting, which exhibit is incorporated herein by reference. (2) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's Definitive Proxy Statement in connection with the Registrant's 2003 Annual Meeting, which exhibit is incorporated herein by reference. (3) Included in Exhibit 5 to this Registration Statement. (4) Included in the signature page to this Registration Statement. 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. (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. 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 4 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 Houston, State of Texas, on the 25th day of August, 2003. ISOLAGEN, INC. By: /s/ Jeffrey W. Tomz ----------------------------------------- Jeffrey W. Tomz Chief Financial Officer and Secretary POWER OF ATTORNEY Each of the undersigned officers and directors of the Registrant, Isolagen, Inc., whose signature appears below, hereby appoints Michael Macaluso and Jeffrey W. Tomz, jointly and individually, as attorneys-in-fact for the undersigned with full power of substitution, to execute in his or her name and on behalf of such person, individually, and in each capacity stated below, this Registration Statement on Form S-8 and one or more amendments (including post-effective amendments) to this Registration Statement and any related registration statement under Rule 462(b) under the Securities Act of 1933 as the attorney-in-fact shall deem appropriate, and to file any such amendment (including exhibits thereto and other documents in connection herewith) to this Registration Statement on Form S-8 or Rule 462(b) registration statement with the Securities and Exchange Commission, granting unto said attorneys-in-fact, and each of them, 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 to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or either of them, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------- ----- ---- /s/ Michael Macaluso Chief Executive Officer and Director August 25, 2003 - ----------------------------- (Principal Executive Officer) Michael Macaluso /s/ Jeffrey W. Tomz Chief Financial Officer and Secretary August 25, 2003 - --------------------------- (Principal Financial Officer and Jeffrey W. Tomz Principal Accounting Officer) /s/ Frank DeLape Chairman of the Board of Directors August 25, 2003 - --------------------------- Frank DeLape
5
Signature Title Date - --------- ----- ---- /s/ William K. Boss, Jr. Vice Chairman of the Board of Directors August 25, 2003 - ----------------------------- William K. Boss, Jr. /s/ Michael Avignon Director August 25, 2003 - --------------------------- Michael Avignon /s/ Steven Morrell Director August 25, 2003 - --------------------------- Steven Morrell /s/ E. Ashley Smith Director August 25, 2003 - --------------------------- E. Ashley Smith /s/ Ralph V. De Martino Director August 25, 2003 - ----------------------------- Ralph V. De Martino
6 EXHIBIT INDEX ------------- Exhibit Number Description -------------- ----------- 4.1(1) 2001 Stock Option and Appreciation Rights Plan 4.2(2) 2003 Stock Option and Appreciation Rights Plan 5 Opinion of Dilworth Paxson LLP as to the legality of securities being registered 23.1 Consent of Pannell Kerr Forster of Texas, P.C. 23.2(3) Consent of Dilworth Paxson LLP 24(4) Power of Attorney of certain officers and directors of the Company __________________ (1) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's Definitive Proxy Statement in connection with the Registrant's 2001 Annual Meeting, which exhibit is incorporated herein by reference. (2) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's Definitive Proxy Statement in connection with the Registrant's 2003 Annual Meeting, which exhibit is incorporated herein by reference. (3) Included in Exhibit 5 to this Registration Statement. (4) Included in the signature page to this Registration Statement. EX-5 3 h08697exv5.txt OPINION OF DILWORTH PAXSON LLP EXHIBIT 5 [LETTERHEAD OF DILWORTH PAXSON LLP] August 25, 2003 Board of Directors Isolagen, Inc. 2500 Wilcrest, 5th Floor Houston, TX 77042 Re: 2001 Stock Option and Appreciation Rights Plan and 2003 Stock Option and Appreciation Rights Plan - Registration Statement on Form S-8 Ladies and Gentlemen: As counsel for Isolagen, Inc., a Delaware corporation (the "Company"), we have been asked to render our opinion with respect to certain matters relating to the offer and sale of a total of up to 7,150,000 shares of the Company's Common Stock, par value $.001 per share (the "Shares"), which are or may become issuable under the following employee stock option plans (the "Plans"): (i) the 2001 Stock Option and Appreciation Rights Plan (the "2001 Plan") -- 4,900,000 Shares (exclusive of 100,000 shares of the Company's Common Stock previously issued under the 2001 Plan); and (ii) the 2003 Stock Option and Appreciation Rights Plan (the "2003 Plan") -- 2,250,000 Shares. The number of shares which may be purchased upon exercise of each option is subject to adjustment from time to time as set forth in such option or the applicable Plan. The Shares are the subject of a Registration Statement on Form S-8 (the "Registration Statement") which the Company intends to file with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "Act"), on or about August 25, 2003. (Said Registration Statement on Form S-8 is referred to hereinafter as the "Registration Statement.") In rendering this opinion, we have examined: (i) the Certificate of Incorporation and By-laws of the Company, each as presently in effect; (ii) resolutions of the Company's Board of Directors adopting the 2001 Plan and subsequently amending the 2001 Plan to increase the number of shares issuable under such Plan from 1,500,000 Shares to 5,000,000 Shares; (iii) resolutions of the Company's Board of Directors adopting the 2003 Plan and authorizing the issuance of up to a total of 2,250,000 Shares pursuant to such Plan; (iv) various forms of stock option agreements under the respective Plans; (v) resolutions of the Company's Board of Directors authorizing the preparation and filing of the Registration Statement; (vi) the Registration Statement; and (vii) such certificates and other documents as we have deemed appropriate or necessary as a basis for the opinions hereinafter expressed. In rendering the opinions expressed below, we have assumed the authenticity of all documents and records examined, the conformity with the original documents of all documents submitted to us as copies and the genuineness of all signatures. Based upon and subject to the foregoing, we are of the opinion that the Shares, when duly issued in accordance with the terms of the respective Plans (including the terms and conditions of options granted thereunder), after the Registration Statement shall have become effective under the Act, will be legally issued, fully paid and nonassessable. We have made such investigation of the General Corporation Law of the State of Delaware as we have considered appropriate for the purpose of rendering the opinion expressed above. We are qualified to practice law in the Commonwealth of Pennsylvania; this opinion is limited to the Federal law of the United States and the General Corporation Law of the State of Delaware (including current judicial interpretations thereof). We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference made to this Firm in Item 5 of Part II of the Registration Statement. Very truly yours, /s/ DILWORTH PAXSON LLP cc: Jeffrey W. Tomz, Chief Financial Officer and Secretary Isolagen, Inc. EX-23.1 4 h08697exv23w1.txt CONSENT OF PANNELL KERR FORSTER OF TEXAS, P.C. EXHIBIT 23.1 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Isolagen, Inc. ("the Company") on Form S-8 of our report dated March 12, 2003, appearing in the Company's Annual Report on Form 10-KSB for the year ended December 31, 2002. /s/ PANNELL KERR FORSTER OF TEXAS, P.C. - --------------------------------------- Pannell Kerr Forster of Texas, P.C. Houston, Texas August 25, 2003 -----END PRIVACY-ENHANCED MESSAGE-----