AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 14, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CELSION CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation or Organization)
52-1256615
(I.R.S. Employer Identification No.)
10220-L OLD COLUMBIA ROAD
COLUMBIA, MD 21046-2364
(Address of Principal Executive Offices) (Zip Code)
CELSION CORPORATION 2004 STOCK INCENTIVE PLAN
(Full Title of the Plan)
AUGUSTINE Y. CHEUNG
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CELSION CORPORATION
10220-I OLD COLUMBIA ROAD
COLUMBIA, MD 21046-2364
(Name, and Address of Agent For Service)
(410) 290-5390
Telephone Number, Including Area Code, of Agent for Service.
---------------
COPIES TO:
ANITA J. FINKELSTEIN
VICE PRESIDENT AND GENERAL COUNSEL
CELSION CORPORATION
10220-I OLD COLUMBIA ROAD
COLUMBIA, MD 21046-2364
(410) 290-5390
CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED
AMOUNT MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AGGREGATE PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE FEE
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Common stock, par value $0.01 per share 10,000,000 Shares $0.685 $6,850,000 $868.00
==============================================================================================================================
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, this
Registration Statement also covers an indeterminate number of additional
shares as may be issued as a result of adjustments by reason of any stock
split, stock dividend or similar transaction.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as
amended. The above calculation is based on the average of the high and low
prices of the Registrant's Common Stock reported on The American Stock
Exchange on June 8, 2004.
TABLE OF CONTENTS
PART I: INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS*
Item 1. Plan Information
Item 2. Registrant Information and Employee Plan Annual Information
PART II: INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Item 4. Description of Securities
Item 5. Interests of Named Experts and Counsel
Item 6. Indemnification of Directors and Officers
Item 7. Exemption from Registration Claimed
Item 8. Exhibits
Item 9. Undertakings
SIGNATURES
EXHIBIT INDEX
EXHIBITS
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS*
ITEM 1. PLAN INFORMATION
Not required to be included in this Registration Statement on Form S-8
pursuant to the Introductory Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be included in this Registration Statement on Form S-8
pursuant to the Introductory Note to Part I of Form S-8.
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* Documents containing the information specified in Part I of this Form S-8
have been and/or will be sent or give to participants in the Celsion
Corporation 2004 Stock Incentive Plan (the "Plan") as specified in Rule
428(b)(1) promulgated under the Securities Act of 1933, as amended (the
"Securities Act"). In accordance with the instructions to Part I of Form
S-8, such documents will not be filed with the Securities and Exchange
Commission (the "Commission") either as part of this Registration
Statement or as a prospectus or prospectus supplement pursuant to Rule
424 promulgated under the Securities Act. These documents and the
documents incorporated by reference pursuant to Item 3 of Part II of this
Registration Statement, taken together, constitute the prospectus as
required by Section 10(a) of the Securities Act.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
---------------------------------------
The following documents, which have been filed by Celsion
Corporation (the "Registrant") with the Securities and Exchange Commission (the
Commission"), are incorporated into this Registration Statement by reference:
(a) The Registrant's Annual Report on Form 10-K for the
year ended September 30, 2003, filed with the
Commission on December 29, 2003;
(b) The Registrant's Report on Form 10-Q for the
transition period from October 1, 2003 to December
31, 2003, filed with the Commission on February 17,
2004;
(c) The Registrant's Quarterly Report on Form 10-Q for
the quarter ended March 31, 2004, filed with the
Commission on May 17, 2004;
(d) The Registrant's Current Report on Form 8-K, filed
with the Commission on May 25, 2004;
(e) The Registrant's Current Report on Form 8-K, filed
with the Commission on June 2, 2004;
(f) 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 Form 10-K referred to in
(a) above; and
(g) The description of the Common Stock set forth under
the heading "Item 1. Description of Registrant's
Securities to be Registered" in the Registrant's
Registration Statement on Form 8-A (File No.
001-15911), filed with the Commission on May 26, 2000
under
Section 12(g) of the Exchange Act, together with any
amendment or report filed with the Commission for the
purpose of updating such description.
All documents subsequently filed by the Registrant with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act,
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 into this
Registration Statement and to be a part of this Registration Statement from the
date of filing of such documents. Any statement contained herein or 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 herein by reference
modifies or supersedes such earlier 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 4. DESCRIPTION OF SECURITIES.
-------------------------
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
The Registrant is organized under the laws of the State of
Delaware. The Registrant's Certificate of Incorporation provides that the
Registrant shall indemnify its current and former directors and officers, and
may indemnify its current and former employees and agents, against any and all
liabilities and expenses incurred in connection with their services in those
capacities to the maximum extent permitted by Delaware law.
The Delaware General Corporation Law (the "DGCL") provides
that a Delaware corporation has the power generally to indemnify its current and
former directors, officers, employees and other agents (each, a "Corporate
Agent") against expenses and liabilities (including amounts paid in settlement)
in connection with any proceeding involving such person by reason of his being a
Corporate Agent, other than a proceeding by or in the right of the corporation,
if such person 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 proceeding, such person had no reasonable cause to believe his
conduct was unlawful.
In the case of an action brought by or in the right of the
corporation, indemnification of a Corporate Agent is permitted if such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. However, no indemnification is
permitted 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 in which such proceeding was brought shall determine upon
application that despite the adjudication of liability, but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to such
indemnification.
To the extent that a Corporate Agent has been successful on
the merits or otherwise in the defense of such proceeding, whether or not by or
in the right of the corporation, or in the defense of any claim, issue or matter
therein, the corporation is required to indemnify such person for expenses in
connection therewith. Under the DGCL, the corporation may advance expenses
incurred by a Corporate Agent in connection with a proceeding, provided that the
Corporate Agent undertakes to repay such amount if it shall ultimately be
determined that such person is not entitled to indemnification. The Registrant's
Certificate of Incorporation requires the Registrant to advance expenses to any
person entitled to indemnification, provided that such person undertakes to
repay the advancement if it is determined in a final judicial decision from
which there is no appeal that such person is not entitled to indemnification.
2
The power to indemnify and advance the expenses under the DGCL
does not exclude other rights to which a Corporate Agent may be entitled to
under the Certificate of Incorporation, by laws, agreement, vote of stockholders
or disinterested directors or otherwise.
The Registrant's Certificate of Incorporation permits the
Registrant to secure insurance on behalf of directors, officers, employees and
agents of the Registrant for any expense, liability or loss incurred in such
capacities, regardless of whether the Certificate of Incorporation or Delaware
law would permit indemnification against such expense, liability or loss.
The purpose of these provisions is to assist the Registrant in
retaining qualified individuals to serve as our directors, officers, employees
and agents by limiting their exposure to personal liability for serving as such.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable.
ITEM 8. EXHIBITS.
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NUMBER DESCRIPTION
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4.1* Certificate of Incorporation of Celsion Corporation,
as amended (compiled).
4.2 Certificate of Designations of Series C Junior
Participating Preferred Stock of Celsion Corporation
(filed as Exhibit 4.4 to the Registrant's
Registration Statement on Form S-3 (File No.
333-100638) and incorporated herein by reference).
4.3* Bylaws of Celsion Corporation, as amended
(compiled).
4.4 Rights Agreement between Celsion Corporation and
American Stock Transfer & Trust Company dated as of
August 15, 2002 (the "Rights Agreement") (filed as
Exhibit 99.1 to the Registrant's Current Report on
Form 8-K filed August 21, 2002).
4.5* Amendment to Rights Agreement adopted January 16,
2003.
4.6* Celsion Corporation 2004 Stock Incentive Plan.
5* Opinion of Anita J. Finkelstein, Esquire re:
Legality.
23.1* Consent of Anita J. Finkelstein, Esquire (included
in Exhibit 5).
23.2* Consent of Stegman & Company, Independent Public
Accountants to Celsion Corporation.
24* Powers of Attorney (included in Signature Page).
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* Filed herewith.
3
ITEM 9. UNDERTAKINGS.
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(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:
(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;
(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 the
Registration Statement;
provided, however, that paragraphs A(1)(i) and A(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each post-effective amendment to 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.
(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 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 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 Securities
Act and will be governed by the final adjudication of such issue.
4
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 Columbia, Maryland, on the 10th day of June, 2004.
CELSION CORPORATION
By: /s/ Augustine Y. Cheung
-------------------------------------------------
Augustine Y. Cheung
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Augustine Y. Cheung and Claude
Tihon and each of them, as his true and lawful attorneys-in-fact and agents,
with full power 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, or any
related Registration Statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their, or his substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
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.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ Augustine Y. Cheung Director, President and Chief June 10, 2004
------------------------------------ Executive Officer (Principal
Augustine Y. Cheung Executive Officer)
/s/ Anthony P. Deasey Executive Vice President, Chief June 10, 2004
------------------------------------ Operating Officer and Chief Financial
Anthony P. Deasey Officer (Principal Financial and
Accounting Officer)
/s/ Max E. Link Director (Chairman of the Board of
------------------------------------ Directors) June 9, 2004
Max E. Link
/s/ Claude Tihon Director June 9, 2004
------------------------------------
Claude Tihon
/s/ Gary W. Pace Director June 9, 2004
------------------------------------
Gary W. Pace
/s/ Kris Venkat Director June 9, 2004
------------------------------------
Kris Venkat
5
EXHIBIT INDEX
NUMBER DESCRIPTION
------ -----------
4.1* Certificate of Incorporation of Celsion
Corporation, as amended (compiled).
4.2 Certificate of Designations of Series C Junior
Participating Preferred Stock of Celsion
Corporation (filed as Exhibit 4.4 to the
Registrant's Registration Statement on Form S-3
(File No. 333-100638) and incorporated herein by
reference).
4.3* Bylaws of Celsion Corporation, as amended
(compiled).
4.4 Rights Agreement between Celsion Corporation and
American Stock Transfer & Trust Company dated as
of August 15, 2002 (filed as Exhibit 99.1 to the
Registrant's Current Report on Form 8-K filed
August 21, 2002).
4.5* Amendment to Rights Agreement adopted January 16,
2003.
4.6* Celsion Corporation 2004 Stock Incentive Plan.
5* Opinion of Anita J. Finkelstein, Esquire re:
Legality.
23.1* Consent of Anita J. Finkelstein, Esquire (included
in Exhibit 5).
23.2* Consent of Stegman & Company, Independent Public
Accountants to Celsion Corporation.
24* Powers of Attorney (included in Signature Page).
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* Filed herewith.
6