S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on January 19, 2010
As
filed with the Securities and Exchange Commission on January 19,
2010
Registration No.
333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
_____________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
_____________________
Novelos
Therapeutics, Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
(State
or other jurisdiction of incorporation or organization)
|
04-3321804
(I.R.S.
employer identification no.)
|
|
One
Gateway Center, Suite 504, Newton, Massachusetts
(Address
of principal executive offices)
|
02458
(Zip
code)
|
Novelos
Therapeutics, Inc.
2006
Stock Incentive Plan;
2000
Stock Option and Incentive Plan;
Nonqualified
Option Issuances
(Full
title of the plan)
____________________
Harry
S. Palmin
President
and Chief Executive Officer
Novelos
Therapeutics, Inc.
One
Gateway Center, Suite 504
Newton,
Massachusetts 02458
(Name and
address of agent for service)
(617)
244-1616
(Telephone
number, including area code, of agent for service)
____________________
WITH
A COPY TO:
Paul
Bork, Esq.
Foley
Hoag LLP
155
Seaport Boulevard
Boston,
Massachusetts 02210
(617)
832-1000
____________________
CALCULATION
OF REGISTRATION FEE
|
Title
of
securities
to be
registered
|
Amount
to
be
registered
(1)
|
Proposed
maximum
offering
price
per
share
|
Proposed
maximum
aggregate
offering
price
|
Amount
of
registration
fee
|
|
common
stock,
par
value $0.00001 per share
|
6,710,000
shares (2)
|
$
0.63 (4)
|
$
4,227,300
|
|
|
common
stock,
par
value $0.00001 per share
|
3,290,000
shares (3)
|
$
1.77 (5)
|
$
5,823,300
|
|
|
common
stock,
par
value $0.00001 per share
|
56,047
shares (6)
|
$
3.09 (4)
|
$
173,185
|
|
|
common
stock,
par
value $0.00001 per share
|
2,453,778
shares (7)
|
$
0.57 (4)
|
$
1,398,653
|
|
|
Totals:
|
12,509,825
shares
|
$11,622,438
|
$
828.68
|
|
(1)
|
Pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended, the
shares of common stock offered hereby also include an indeterminate number
of additional shares of common stock as may from time to time become
issuable by reason of stock splits, stock dividends, recapitalizations or
other similar transactions.
|
|
(2)
|
Represents
shares of common stock issuable upon exercise of outstanding options
issued under the 2006 stock incentive
plan.
|
|
(3)
|
Represents
shares of common stock reserved and available for issuance pursuant to
future awards under the 2006 stock incentive
plan.
|
|
(4)
|
Calculated
pursuant to Rule 457(h) under the Securities Act of 1933 based on the
weighted average exercise price per share of outstanding
options.
|
|
(5)
|
Estimated
based on the closing price of our common stock as reported
over-the-counter on the OTC Electronic Bulletin Board of the National
Association of Securities Dealers, Inc. on January 15, 2010 pursuant to
Rule 457(c) promulgated under the Securities Act of
1933.
|
|
(6)
|
Represents
shares of common stock issuable upon exercise of outstanding options
issued under the 2000 stock option and incentive
plan.
|
|
(7)
|
Represents
shares of common stock issuable upon exercise of other outstanding
options.
|
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
|
Item
3.
|
Incorporation
of Documents by Reference
|
The
following documents, which we filed with the Securities and Exchange Commission,
are incorporated by reference in this registration statement:
|
(a)
|
Our
annual report on Form 10-K for the fiscal year ended December 31, 2008
filed on March 31, 2009;
|
|
(b)
|
Our
quarterly report on Form 10-Q for the fiscal quarter ended September 30,
2009 filed on November 16, 2009;
|
|
(c)
|
Our
quarterly report on Form 10-Q for the fiscal quarter ended June 30, 2009
filed on August 6, 2009;
|
|
(d)
|
Our
quarterly report on Form 10-Q for the fiscal quarter ended March 31, 2009
filed on May 15, 2009;
|
|
(e)
|
Our
current report on Form 8-K filed on December 14,
2009;
|
|
(f)
|
Our
current report on Form 8-K filed on November 4,
2009;
|
|
(g)
|
Our
current report on Form 8-K filed on August 26, 2009;
and
|
|
(h)
|
Our
current report on Form 8-K filed on February 18,
2009.
|
In
addition, all documents subsequently filed by us pursuant to Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, 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, are deemed to be incorporated by reference into, and to be a part of,
this registration statement.
|
Item
4.
|
Description
of Securities
|
Under our
amended and restated certificate of incorporation, our authorized capital stock
consists of 225,000,000 shares of common stock, $0.00001 par value per share and
7,000 shares of preferred stock, $0.00001 par value per share.
Our
amended and restated certificate of incorporation authorizes us to issue shares
of our preferred stock from time to time in one or more series without
stockholder approval. As of January 18, 2010, we had designated 272 shares of
Series C cumulative convertible preferred stock, 204 of which were issued and
outstanding as of that date and 735 shares of Series E preferred stock,
538.76581925 of which were issued and outstanding as of that date.
All
outstanding shares of our common stock and preferred stock are duly authorized,
validly issued, fully-paid and non-assessable.
Common
Stock
Voting. Holders of our common
stock are entitled to one vote per share held of record on all matters to be
voted upon by our stockholders. Our common stock does not have cumulative voting
rights. Persons who hold a majority of the outstanding common stock entitled to
vote on the election of directors can elect all of the directors who are
eligible for election.
- 2
- -
Dividends. Subject to
preferences that may be applicable to the holders of any outstanding shares of
our preferred stock, the holders of our common stock are entitled to receive
such lawful dividends as may be declared by our board of directors.
Liquidation and Dissolution.
In the event of our liquidation, dissolution or winding up, and subject to the
rights of the holders of any outstanding shares of our preferred stock, the
holders of shares of our common stock will be entitled to receive pro rata all
of our remaining assets available for distribution to our
stockholders.
Other Rights and
Restrictions. Our charter prohibits us from granting preemptive rights to
any of our stockholders. All outstanding shares are fully paid and
nonassessable.
Listing. Our common stock is
traded on the over-the-counter bulletin board under the trading symbol
“NVLT.OB”.
Series
C Cumulative Convertible Preferred Stock
Stated Value: The Series C
preferred stock has a stated value of $12,000 per share.
Voting Rights: The Series C
preferred stockholders do not have voting rights.
Dividends: The Series C
preferred stock had an annual dividend rate of 8% until October 1, 2008 and
since that date an annual dividend rate of 20%. The dividends are payable
quarterly commencing on June 30, 2007. Such dividends shall only be paid after
all outstanding dividends on the Series E preferred stock (with respect to the
current fiscal year and all prior fiscal years) shall have been paid to the
holders of the Series E preferred stock. Such dividends shall be paid in
cash. As of January 18, 2010, there were aggregate accrued and unpaid
dividends of approximately $719,000 on the Series C preferred
stock.
Conversion: Each share of
Series C preferred stock is currently convertible at a price of $0.65 per common
share. The Series C preferred stock can be converted only to the extent that the
Series C stockholder will not, as a result of the conversion, hold in excess of
4.99% of the total outstanding shares of our common stock, provided however that
this limitation may be revoked by the stockholder upon 61 days’ prior notice to
us.
Antidilution : Upon the
occurrence of a stock split, stock dividend, combination of our common stock
into a smaller number of shares, issuance of any of our shares or other
securities by reclassification of our common stock, merger or sale of
substantially all of our assets, the conversion rate shall be adjusted so that
the conversion rights of the Series C preferred stock stockholders will be
equivalent to the conversion rights of the Series C preferred stock stockholders
prior to such event.
Redemption: The Series C
preferred stock is not redeemable at the option of the holder. However, we may
redeem the Series C preferred stock by paying to the holder a sum of money equal
to one hundred twenty percent (120%) of the stated value per share plus any
accrued but unpaid dividends upon 30 days’ (during which time the Series C
preferred stock may be converted) prior written notice if a registration
statement has been filed with and declared effective by the Securities and
Exchange Commission covering the shares of our common stock issuable upon
conversion of the Series C preferred stock.
Dissolution: In the event of
any voluntary or involuntary liquidation, dissolution or winding up of our
affairs, the Series C preferred stock will be treated as senior to our common
stock. After all required payments are made to holders of Series E preferred
stock, the Series C preferred stockholders will be entitled to receive first,
$12,000 per share and all accrued and unpaid dividends. If, upon any winding up
of our affairs, our remaining assets available to pay the holders of Series C
preferred stock are not sufficient to permit the payment in full, then all our
assets will be distributed to the holders of our Series C preferred stock (and
any remaining holders of Series E preferred stock as may be required) on a pro
rata basis.
- 3
- -
Series
E Convertible Preferred Stock
Stated Value: The Series E
preferred stock has a stated value of $50,000 per share.
Voting and Board Rights: The
Series E preferred stockholders are entitled to vote on all matters on which the
holders of common stock are entitled to vote. The number of votes to which each
holder of Series E preferred stock is entitled is equal to the number of shares
of common stock that would be issued to such holder if the Series E Preferred
Stock had been converted at the record date for the meeting of stockholders,
subject to the limitations described under the subcaption “Conversion”
below.
Pursuant
to the securities purchase agreement dated March 26, 2008, the Xmark affiliated
funds have the right to designate one member to our Board of Directors.
This right shall last until such time as the Xmark affiliated funds no longer
hold at least one-third of the preferred stock issued to them at closing. In
addition, the Xmark affiliated funds and the Orbimed affiliated
funds (together with the Xmark affiliated funds, the “Lead Investors”) have
the right to designate one observer to attend all meetings of our Board of
Directors, committees thereof and access to all information made available to
members of the Board. This right lasts until such time as the Lead Investors no
longer hold at least one-third of the preferred stock issued to
them. Pursuant to the securities purchase agreement dated August 25,
2009, Purdue has the right to either designate one member of our board of
directors or designate an observer to attend all meetings of our Board of
Directors, committees thereof and access to all information made available to
members of the Board. This right lasts until the later of such time as Purdue or
its assignees no longer hold at least one-half of the common stock and preferred
stock issued to them.
Dividends: The Series E
preferred stock has a dividend rate of 9% per annum, payable semi-annually. Such
dividends may be paid in cash, in shares of Series E preferred stock or in
registered shares of common stock. While any shares of Series E preferred stock
remain outstanding, we are prohibited from paying dividends to common
stockholders or any other class of preferred stock other than Series C preferred
stock without the prior consent of the Series E holders. If consent is given,
the holders of outstanding shares of Series E preferred stock are also entitled
to participate in any dividends paid to common stockholders. As of
January 18, 2010, there were aggregate accrued and unpaid dividends of
approximately $2,275,000 on the Series E preferred stock.
Conversion: Each share of
Series E preferred stock is convertible at a price of $0.65 per common share at
any time after issuance. The Series E preferred stock can be converted only to
the extent that the Series E stockholder will not, as a result of the
conversion, beneficially hold in excess of 4.99% or 9.99%, as applicable, of the
total outstanding shares of our common stock, provided however that this
limitation may be revoked by the stockholder upon 61 days’ prior notice to the
Company. If there is an effective registration statement covering the shares of
common stock underlying the outstanding shares of Series E preferred stock and
the daily volume weighted average price (“VWAP”), as defined in the Series E
Certificate of Designations, of our common stock exceeds $2.00 for 20
consecutive trading days, then the outstanding Series E preferred stock will
automatically convert, together with accrued dividends, into common
stock at the conversion price then in effect.
Antidilution:
Upon the occurrence of a stock split, stock dividend, combination of our
common stock into a smaller number of shares, issuance of any of our shares or
other securities by reclassification of our common stock, merger or sale of
substantially all of our assets, the conversion rate shall be adjusted so that
the conversion rights of the Series E preferred stock will be equivalent to the
conversion rights of the Series E preferred stock stockholders prior to such
event.
Liquidation: The Series E
preferred stock ranks senior to all other outstanding series of preferred stock
and common stock as to the payment of dividends and the distribution of assets
upon voluntary or involuntary liquidation, dissolution or winding up of our
affairs. The Series E preferred stockholders will be entitled to receive first,
prior to any distribution of any assets or surplus funds of the Company to the
holders of common stock or any other class of capital stock, an amount equal to
$50,000 per share and all accrued and unpaid dividends. They are then entitled
to participate with the holders of the remaining classes of common stock in the
distribution of remaining assets on a pro rata basis. If, upon any winding up of
our affairs, our assets available to pay the holders of Series E preferred stock
are not sufficient to permit the payment in full, or the amounts described
above, then all our assets will be distributed to the holders of our Series E
preferred stock on a pro rata basis.
- 4
- -
If we
sell, lease or otherwise transfer substantially all of our assets, consummate a
business combination in which we are not the surviving corporation or, if we are
the surviving corporation, if the holders of a majority of our common stock
immediately before the transaction do not hold a majority of our common stock
immediately after the transaction, in one or a series of events, change the
majority of the members of our board of directors, or if any person or entity
(other than the holders of Series E preferred stock) acquires more than 50% of
our outstanding stock, then the holders of Series E preferred stock are entitled
to receive the same liquidation preference as described above, except that after
receiving $50,000 per preferred share and any accrued but unpaid dividends, they
are not entitled to participate with other classes or common stock in a
distribution of the remaining assets.
Other restrictions: For as long as any
shares of Series E preferred stock remain outstanding, without the prior consent
of the requisite holders of Series E preferred stock (generally the Xmark
affiliated funds, the Orbimed affiliated funds and Purdue), the Company is
prohibited from (i) paying dividends to common stockholders; (ii) amending the
Company’s certificate of incorporation or by-laws; (iii) issuing any equity
security or any security convertible into or exercisable for any equity security
at a price of $0.65 or less or with rights senior to the Series E preferred
stock (except for certain exempted issuances); (iv) increasing the number of
shares of Series E preferred stock or issuing any additional shares of Series E
preferred stock other than the shares designated in the Series E Certificate of
Designations; (v) selling, licensing or otherwise granting any rights with
respect to all or substantially all of the Company’s assets (and in
the case of licensing, any material intellectual property) or the
Company's business and shall not enter into a merger or consolidation with
another company unless Novelos is the surviving corporation, the Series E
preferred stock remains outstanding, there are no changes to the rights and
preferences of the Series E preferred stock and there is not created any new
class of capital stock senior to the Series E preferred stock; (vi) redeeming or
repurchasing any capital stock other than Series E preferred stock; (vii)
incurring any new debt for borrowed money in excess of $500,000 and (viii)
changing the number of the Company’s directors.
Anti-Takeover
Effect of Certain Charter and By-Law Provisions
Provisions
of our charter and our by-laws could make it more difficult to acquire us by
means of a merger, tender offer, proxy contest, open market purchases, removal
of incumbent directors and otherwise. These provisions, which are summarized
below, are expected to discourage types of coercive takeover practices and
inadequate takeover bids and to encourage persons seeking to acquire control of
us to first negotiate with us. We believe that the benefits of increased
protection of our potential ability to negotiate with the proponent of an
unfriendly or unsolicited proposal to acquire or restructure us outweigh the
disadvantages of discouraging takeover or acquisition proposals because
negotiation of these proposals could result in an improvement of their
terms.
Authorized but Unissued
Stock. We have shares of common stock and preferred stock available for
future issuance, in some cases, without stockholder approval. We may issue these
additional shares for a variety of corporate purposes, including public
offerings to raise additional capital, corporate acquisitions, stock dividends
on our capital stock or equity compensation plans.
The
existence of unissued and unreserved common stock and preferred stock may enable
our board of directors to issue shares to persons friendly to current management
or to issue preferred stock with terms that could render more difficult or
discourage a third-party attempt to obtain control of us, thereby protecting the
continuity of our management. In addition, if we issue preferred stock, the
issuance could adversely affect the voting power of holders of common stock and
the likelihood that such holders will receive dividend payments and payments
upon liquidation.
Vacancies on the Board of
Directors. Our by-laws provide that any vacancy on the board of
directors, however occurring, including a vacancy resulting from an enlargement
of the board, may be filled only by the vote of a majority of the directors then
in office. This limitation on the filling of vacancies could have the effect of
making it more difficult for a third party to acquire, or of discouraging a
third party from acquiring, control of us.
Notice Periods for Stockholder
Meetings. Our by-laws provide that for business to be brought by a
stockholder before an annual meeting of stockholders, the stockholder must
give written notice to the corporation not less than 90 nor more than 120
days prior to the one year anniversary of the date of the annual meeting of
stockholders of the previous year; provided, however, that in the event that the
annual meeting of stockholders is called for a date that is not within 30 days
before or after such anniversary date, notice by the stockholder must be
received not later than the close of business on the tenth day following the day
on which the corporation's notice of the date of the meeting is first given
or made to the stockholders or disclosed to the general public, whichever occurs
first.
- 5
- -
Special Meeting of
Stockholders. Our by-laws provide that any action required or permitted
to be taken by our stockholders at an annual meeting or special meeting of
stockholders may only be taken if it is properly brought before the
meeting.
|
Item
5.
|
Interest
of Named Experts and Counsel
|
The
validity of the securities we are registering is being passed upon by Foley Hoag
LLP, Boston, Massachusetts.
|
Item
6.
|
Indemnification
of Directors and Officers
|
Section
102(b)(7) of the Delaware General Corporation Law allows us to adopt a charter
provision eliminating or limiting the personal liability of directors to us or
our stockholders for breach of fiduciary duty as directors, but the provision
may not eliminate or limit the liability of directors for (a) any breach of the
director's duty of loyalty to us or our stockholders, (b) any acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (c) unlawful payments of dividends or unlawful stock repurchases or
redemptions under Section 174 of the Delaware General Corporation Law or (d) any
transaction from which the director derived an improper personal benefit.
Article Seventh of our charter provides that none of our directors shall be
personally liable to us or our stockholders for monetary damages for any breach
of fiduciary duty as a director, subject to the limitations imposed by Section
102(b)(7). Article Seventh also provides that no amendment to or repeal of
Article Seventh shall apply to or have any effect on the liability or the
alleged liability of any director with respect to any acts or omissions of such
director occurring prior to such amendment or repeal. A principal effect of
Article Seventh is to eliminate or limit the potential liability of our
directors for monetary damages arising from breaches of their duty of care,
unless the breach involves one of the four exceptions described in (a) through
(d) above.
Section
145 of the Delaware General Corporation Law provides, in general, that a
corporation incorporated under the laws of the State of Delaware, such as us,
may indemnify 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 (other
than a derivative action by or in the right of the corporation) by reason of the
fact that such person 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 or agent of another enterprise, against expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe such person's conduct was unlawful. In the case of a
derivative action, a Delaware corporation may indemnify any such person against
expenses (including attorneys’ fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit if
such person acted in good faith and in a manner such person reasonably believed
to be in or not opposed to the best interests of the corporation, except that no
indemnification will be made in respect of any claim, issue or matter as to
which such person will 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
any other court in which such action was brought determines such person is
fairly and reasonably entitled to indemnity for such expenses.
Article
Eighth of our amended and restated certificate of incorporation, as amended, and
Section 5.1 of our by-laws provide that we will indemnify our directors,
officers, employees and agents to the extent and in the manner permitted by the
provisions of the Delaware General Corporation Law, as amended from time to
time, subject to any permissible expansion or limitation of such
indemnification, as may be set forth in any shareholders’ or directors’
resolution or by contract.
- 6
- -
The
effect of these provisions would be to permit indemnification by us for, among
other liabilities, liabilities arising out of the Securities Act of
1933.
|
Item
7.
|
Exemption
from Registration Claimed
|
Not
Applicable.
|
Item
8.
|
Exhibits.
|
|
Exhibit
Number
|
Description
|
|
|
3.1
|
Amended
and Restated Certificate of Incorporation filed as Exhibit A to the
Certificate of Merger merging Nove Acquisition, Inc. with and into Novelos
Therapeutics, Inc. dated May 26, 2005 (filed as exhibit 3.1 to our
quarterly report on 10-QSB filed on August 10, 2007).
|
|
|
3.2
|
Certificate
of Merger merging Common Horizons, Inc. with and into Novelos
Therapeutics, Inc. dated June 13, 2005 (filed as exhibit 3.2 to our
quarterly report on 10-QSB filed on August 10, 2007).
|
|
|
3.3
|
Certificate
of Correction dated March 3, 2006 (filed as exhibit 3.3 to our quarterly
report on 10-QSB filed on August 10, 2007).
|
|
|
3.4
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation dated
July 16, 2007 (filed as exhibit 3.4 to our quarterly report on 10-QSB
filed on August 10, 2007).
|
|
|
3.5
|
Certificate
of Designations of Series C cumulative convertible preferred
stock (filed as exhibit 3.5 to our quarterly report on 10-QSB filed on
August 10, 2007).
|
|
|
3.6
|
Certificate
of Designations of Series E convertible preferred stock (filed
as exhibit 4.1 to our current report on Form 8-K filed on February 18,
2009).
|
|
|
3.7
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation dated
November 3, 2009 (filed as exhibit 3.7 to our quarterly report on Form
10-Q filed on November 16, 2009).
|
|
|
3.8
|
Amended
and Restated By-Laws (filed as exhibit 3.1 to our current report on Form
8-K filed on August 26, 2009).
|
|
|
5.1
|
Opinion
of Foley Hoag LLP.
|
|
|
10.1
|
Novelos
Therapeutics, Inc. 2006 Stock Incentive Plan, as amended (filed as exhibit
10.16 to Amendment no. 1 to our registration statement on Form S-1 filed
on December 7, 2009).
|
|
|
10.2
|
Form
of Incentive Stock Option under Novelos Therapeutics, Inc.’s 2006 Stock
Incentive Plan (filed as exhibit 10.1 to our current report on Form 8-K
filed on December 15, 2006).
|
|
|
10.3
|
Form
of Non-Statutory Stock Option under Novelos Therapeutics, Inc.’s 2006
Stock Incentive Plan (filed as exhibit 10.2 to our current report on Form
8-K filed on December 15, 2006).
|
|
|
10.4
|
Form
of Non-Statutory Director Stock Option under Novelos Therapeutics, Inc.’s
2006 Stock Incentive Plan (filed as exhibit 10.3 to our current report on
Form 8-K filed on December 15, 2006).
|
|
|
10.5
|
2000
Stock Option and Incentive Plan (filed as exhibit 10.2 to our registration
statement on Form SB-2 filed on November 16, 2005).
|
|
|
10.6
|
Form
of 2004 Non-Statutory Stock Option (filed as exhibit 10.3 to our
registration statement on Form SB-2 filed on November 16,
2005).
|
|
|
10.7
|
Form
of Non-Statutory Stock Option used for February-May 2005 (filed as exhibit
10.4 to our registration statement on Form SB-2 filed on November 16,
2005).
|
|
|
10.8
|
Form
of 2004 Non-Statutory Stock Option used for June 2005-December 2005 (filed
as exhibit 10.5 to our registration statement on Form SB-2 filed on
November 16, 2005).
|
|
|
23.1
|
Consent
of Stowe & Degon LLC.
|
|
|
23.2
|
Consent
of Foley Hoag LLP (included in Exhibit 5.1).
|
|
|
24.1
|
Power
of attorney (contained on the signature page of this registration
statement).
|
- 7
- -
|
Item
9.
|
Undertakings
|
The
undersigned registrant hereby undertakes to:
(a)
(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
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20% 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 if the information required to
be included in a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the 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.
(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)
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 Act and
will be governed by the final adjudication of such issue.
- 8
- -
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 Newton,
Massachusetts, as of January 19, 2010.
| NOVELOS THERAPEUTICS, Inc. | |||
|
By:
|
/s/
Harry S. Palmin
|
||
| Harry S. Palmin | |||
| President and Chief Executive Officer | |||
POWER
OF ATTORNEY
KNOW ALL
BY THESE PRESENTS that each individual whose signature appears below hereby
constitutes and appoints Harry Palmin and Joanne Protano, and each of them, his
or her true and lawful attorneys-in-fact and agents with full power of
substitution, for him or her and in his or her 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 all 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 which they, or any of them, may deem necessary or advisable to be done in
connection with this registration statement, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or any
substitute or substitutes for him or her, or any or all of them, 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 indicated capacities as of January 19,
2010.
|
Signature
|
Title
|
|
|
/s/
Harry Palmin
|
President,
Chief Executive Officer and Director
|
|
|
Harry
Palmin
|
(Principal
Executive Officer)
|
|
|
/s/
Joanne Protano
|
Chief
Financial Officer
|
|
|
Joanne
Protano
|
(Principal
Financial and Accounting Officer)
|
|
|
/s/
Stephen Hill
|
Director
|
|
|
Stephen
Hill
|
||
|
/s/
Michael Doyle
|
Director
|
|
| Michael Doyle | ||
|
/s/
Sim Fass
|
Director
|
|
|
Sim
Fass
|
||
|
Director
|
||
| James Manuso | ||
|
/s/
David McWilliams
|
Director
|
|
|
David
McWilliams
|
||
|
/s/
Howard Schneider
|
Director
|
|
|
Howard
Schneider
|
- 9
- -
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
|
3.1
|
Amended
and Restated Certificate of Incorporation filed as Exhibit A to the
Certificate of Merger merging Nove Acquisition, Inc. with and into Novelos
Therapeutics, Inc. dated May 26, 2005 (filed as exhibit 3.1 to our
quarterly report on 10-QSB filed on August 10, 2007).
|
|
|
3.2
|
Certificate
of Merger merging Common Horizons, Inc. with and into Novelos
Therapeutics, Inc. dated June 13, 2005 (filed as exhibit 3.2 to our
quarterly report on 10-QSB filed on August 10, 2007).
|
|
|
3.3
|
Certificate
of Correction dated March 3, 2006 (filed as exhibit 3.3 to our quarterly
report on 10-QSB filed on August 10, 2007).
|
|
|
3.4
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation dated
July 16, 2007 (filed as exhibit 3.4 to our quarterly report on 10-QSB
filed on August 10, 2007).
|
|
|
3.5
|
Certificate
of Designations of Series C cumulative convertible preferred
stock (filed as exhibit 3.5 to our quarterly report on 10-QSB filed on
August 10, 2007).
|
|
|
3.6
|
Certificate
of Designations of Series E convertible preferred stock (filed
as exhibit 4.1 to our current report on Form 8-K filed on February 18,
2009).
|
|
|
3.7
|
Certificate
of Amendment to Amended and Restated Certificate of Incorporation dated
November 3, 2009 (filed as exhibit 3.7 to our quarterly report on Form
10-Q filed on November 16, 2009).
|
|
|
3.8
|
Amended
and Restated By-Laws (filed as exhibit 3.1 to our current report on Form
8-K filed on August 26, 2009).
|
|
|
5.1
|
Opinion
of Foley Hoag LLP.
|
|
|
10.1
|
Novelos
Therapeutics, Inc. 2006 Stock Incentive Plan, as amended (filed as exhibit
10.16 to Amendment no. 1 to our registration statement on Form S-1 filed
on December 7, 2009).
|
|
|
10.2
|
Form
of Incentive Stock Option under Novelos Therapeutics, Inc.’s 2006 Stock
Incentive Plan (filed as exhibit 10.1 to our current report on Form 8-K
filed on December 15, 2006).
|
|
|
10.3
|
Form
of Non-Statutory Stock Option under Novelos Therapeutics, Inc.’s 2006
Stock Incentive Plan (filed as exhibit 10.2 to our current report on Form
8-K filed on December 15, 2006).
|
|
|
10.4
|
Form
of Non-Statutory Director Stock Option under Novelos Therapeutics, Inc.’s
2006 Stock Incentive Plan (filed as exhibit 10.3 to our current report on
Form 8-K filed on December 15, 2006).
|
|
|
10.5
|
2000
Stock Option and Incentive Plan (filed as exhibit 10.2 to our registration
statement on Form SB-2 filed on November 16, 2005).
|
|
|
10.6
|
Form
of 2004 Non-Statutory Stock Option (filed as exhibit 10.3 to our
registration statement on Form SB-2 filed on November 16,
2005).
|
|
|
10.7
|
Form
of Non-Statutory Stock Option used for February-May 2005 (filed as exhibit
10.4 to our registration statement on Form SB-2 filed on November 16,
2005).
|
|
|
10.8
|
Form
of 2004 Non-Statutory Stock Option used for June 2005-December 2005 (filed
as exhibit 10.5 to our registration statement on Form SB-2 filed on
November 16, 2005).
|
|
|
23.1
|
Consent
of Stowe & Degon LLC.
|
|
|
23.2
|
Consent
of Foley Hoag LLP (included in Exhibit 5.1).
|
|
|
24.1
|
Power
of attorney (contained on the signature page of this registration
statement).
|
|