As filed
with the Securities and Exchange Commission on November
6
,
2008
Registration
No. 333-
__________
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
OccuLogix,
Inc.
(Exact
name of registrant as specified in its charter)
|
Delaware
|
000
51030
|
59-343-4771
|
|
(State
or other Jurisdiction of Incorporation)
|
(Commission
File Number)
|
(IRS
Employer Identification No.)
|
2600
Skymark Avenue, Unit 9, Suite 103
Mississauga,
Ontario L4W 5B2
(Address
of principal executive offices)
OccuLogix,
Inc. 2002 Stock Option Plan
Options
Granted Under the OcuSense, Inc. 2003 Stock Option/Stock Issuance Plan and
Assumed by OccuLogix, Inc.
Options
Granted Under a Certain Option Agreement between OccuLogix, Inc. and Stephen
Parks
(Full
title of the plans)
Torys
LLP
237
Park Avenue
New
York, NY 10017
Attention:
Andrew J. Beck
(212)
880-6000
(Name,
address and telephone number,
including
area code, of agent for service)
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company.
|
Large
accelerated filer
o
|
Accelerated
filer
x
|
|
Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
|
Smaller
reporting company
o
|
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
|
|
OccuLogix,
Inc. 2002 Stock Option Plan
|
|
Common
Stock, par value $0.001 per share
|
2,221,760
shares (2)
|
$3.655
(5)
|
$8,120,532.80
(5)
|
$319
|
|
Options
granted under the OcuSense, Inc. 2003 Stock Option/Stock Issuance Plan and
assumed by OccuLogix, Inc.
|
|
Common
Stock, par value $0.001 per share
|
673,034
shares (3)
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$■
(6)
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$917,139.50
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$36
|
|
Options
granted under a certain Option Agreement between OccuLogix, Inc. and
Stephen Parks
|
|
Common
Stock, par value $0.001 per share
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8,000
shares (4)
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$51.25
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$410,000
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$16
|
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TOTAL
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2,902,794
shares
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–
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$9,447,672.30
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$371
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(1)
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This
Registration Statement shall be deemed to cover an indeterminate number of
additional shares which may be offered and issued to prevent dilution
resulting from stock splits, stock dividends or similar
transactions.
|
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(2)
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Represents
two increases (one effecte
d in June 2007 and the other effected in September
2008)
in the reserve of shares of the common stock of
OccuLogix, Inc. (the “
Registrant
”) subject to
issuance upon the exercise of options granted under the Registrant’s 2002
Stock Option Plan. The Registrant previously filed a
registration statement with respect to shares to be issued under the 2002
Stock Option Plan on Form S-8 with the Securities and Exchange Commission
on April 29, 2005 (File No. 333-124505). The contents of this
prior registration statement filed on April 29, 2005 are incorporated
herein by reference pursuant to General Instruction E of Form
S-8.
|
|
(3)
|
Represents
shares of the Registrant’s common stock subject to issuance upon the
exercise of options granted under OcuSense, Inc.’s 2003 Stock Option/Stock
Issuance Plan and assumed by the Registrant pursuant to a certain
Agreement and Plan of Merger and Reorganization, dated April 22, 2008, by
and among the Registrant, OcuSense Acquireco, Inc. (a wholly-owned
subsidiary of the Registrant), and OcuSense, Inc., as amended on July 28,
2008 and October 6, 2008.
|
|
(4)
|
Represents
the shares of the Registrant’s common stock subject to issuance upon the
exercise of options granted to Stephen Parks, a former officer, pursuant
to that certain Option Agreement between the Registrant and Stephen Parks
dated October 4, 2005.
|
|
(5)
|
Estimated
solely for purposes of calculating the registration fee in accordance with
Rule 457 under the Securities Act of 1933, as amended, based upon the
average of the reported high and low sales price of the shares of the
Registrant’s common stock on October 31, 2008 on
The NASDAQ
Capital
Market.
|
|
(6)
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The
outstanding options have exercise prices of $0.25 or
$2.25.
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EXPLANATORY
NOTE
On
October 6, 2008, the Registrant issued a press release announcing that, among
other transactions, it had completed the acquisition of the minority ownership
interest in OcuSense, Inc. that the Registrant did not already
own. The acquisition of the minority ownership interest in OcuSense,
Inc. was effected pursuant to the Agreement and Plan of Merger and
Reorganization, dated April 22, 2008, by and among the Registrant, OcuSense
Acquireco, Inc., a wholly-owned subsidiary of the Registrant, and OcuSense, Inc.
as amended on July 28, 2008 and October 6, 2008 (the “
Merger
Agreement
”). Pursuant to the Merger Agreement, the Registrant
assumed the outstanding stock options under OcuSense, Inc.’s 2003 Stock
Option/Stock Incentive Plan (the “
OcuSense Plan
”).
On
October 7, 2008, the Registrant effected a 1:25 reverse split of its common
stock, as a result of which every 25 issued and outstanding shares of common
stock were combined into one share (and any fractional share was converted into
a whole share). The reverse stock split also affected the number of
shares of common stock issuable upon the exercise of the Registrant’s
outstanding stock options, including stock options granted under the OcuSense
Plan which were assumed by the Registrant pursuant to the Merger
Agreement. All share amounts and per share exercise prices in this
Registration Statement are based on the reverse stock split having been given
effect.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item
1. Plan Information.*
Item
2. Registrant Information And Employee Plan Annual
Information.*
|
*
|
The
documents containing the information specified in Part I of Form S-8 are
not required to be filed with the Securities and Exchange Commission (the
“
SEC
”, the
“Commission”
or the
“Securities and Exchange
Commission”
) either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to the Note to Part I of
Form S-8 and Rule 424 under the Securities Act of 1933, as amended (the
“Securities Act of
1933”
). The information required in the Section 10(a)
prospectus is included in documents being maintained and delivered by the
Registrant as required by Part I of Form S-8 and by Rule 428 under the
Securities Act of 1933.
|
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by
Reference.
The
following documents, which have been filed with the SEC, are specifically
incorporated by reference in this Registration Statement:
|
|
(a)
|
The
Registrant’s Annual Report on Form 10-K for the year ended December 31,
2007, which contains the Registrant’s audited financial statements for
such period, as filed with the SEC on March 17, 2008, and as amended by
Amendment No. 1 filed on April 29, 2008, Amendment No. 2 filed on July 21,
2008, Amendment No. 3 filed on August 21, 2008, Amendment No. 4 filed on
August 26, 2008, and Amendment No. 5 filed on August 27,
2008.
|
|
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(b)
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All
other reports filed by the Registrant under Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended, since December 31,
2007.
|
|
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(c)
|
The
description of the securities contained in the registration statement on
Form 8-A filed with the SEC on November 17, 2004, including any amendment
or report filed for the purpose of updating such
description.
|
|
|
(d)
|
The
registration statement on Form S-8 with respect to shares of common stock
to be issued under the Registrant’s 2002 Stock Option Plan, filed with the
SEC on April 29, 2005.
|
In
addition, all reports and documents filed by the Registrant under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, after the
date of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities being offered hereby have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in and to be part of this Registration Statement
from the date of filing of each such document (such documents, and the documents
enumerated above, being hereinafter referred to collectively as the “
Incorporated
Documents
”).
Any
statement contained in an Incorporated Document shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained therein or in any other subsequently filed Incorporated
Document modifies or supersedes such statement. Any such statements 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
General Corporation Law of the State of Delaware (the “
DGCL
”) authorizes corporations
to limit or eliminate the personal liability of directors to corporations and
the stockholders for monetary damages for breaches of directors’ fiduciary
duties. The restated certificate of incorporation of the Registrant includes a
provision that eliminates the personal liability of directors for monetary
damages for actions taken as a director, except for liability for breach of the
duty of loyalty; for acts or omissions not in good faith or involving
intentional misconduct or knowing violation of law; under Section 174 of the
DGCL (unlawful dividends and stock repurchases); or for transactions from which
the director derived improper personal benefit.
The
Registrant’s restated certificate of incorporation also provides that the
Registrant has the power to indemnify its directors and officers to the fullest
extent authorized by the DGCL and must also pay expenses incurred in defending
any such proceeding in advance of the final disposition of any proceeding,
provided that, if the DGCL requires, such advance payment will be made only if
the Registrant receives an undertaking to repay all amounts so advanced if it
should ultimately be determined that such director or officer is not entitled to
be so indemnified.
The
indemnification rights set forth above shall not be exclusive of any other right
which an indemnified person may have or hereafter acquire under any statute,
provision of the Registrant’s restated certificate of incorporation, amended and
restated by-laws, agreement, vote of stockholders or disinterested directors or
otherwise.
Item
7. Exemption from Registration
Claimed.
Not
applicable.
Item
8. Exhibits.
A list of
exhibits included as part of this Registration Statement is set forth in the
Exhibit Index to this Registration Statement.
Item
9. Undertakings.
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 this Registration Statement (or the most recent post-effective amendment
hereof) 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 percent
change in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective Registration Statement;
(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 (1)(i) and (1)(ii) of this section do not apply if the Registration
Statement is on Form S-8, and 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;
|
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(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;
|
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(3)
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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; and
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(4)
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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.
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 (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.
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 such 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 such 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 Mississauga,
Ontario on November
6
,
2008.
|
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OCCULOGIX,
INC.
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By:
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/s/
William G. Dumencu
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William
G. Dumencu
|
|
|
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Chief
Financial
Officer
|
POWERS
OF ATTORNEY
Each
person whose signature appears below constitutes and appoints Eric Donsky and
William G. Dumencu, and each of them, either of whom may act without the joinder
of the other, 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 or all post-effective amendments
to this Registration Statement, and to file the same, with all exhibits thereto
and other documents in connection therewith, with the U.S. Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents full power
and authority to do and perform each and every act and thing requisite and
necessary to be done, 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 their substitute or substitutes 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 below by the following persons in the capacities
listed below and on November
6
,
2008.
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Signature
|
|
Title
|
|
|
|
|
|
/s/
Eric Donsky
|
|
Chief
Executive Officer and Director
|
|
Eric
Donsky
|
|
|
|
|
|
|
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/s/
William G. Dumencu
|
|
Chief
Financial Officer and Principal Accounting Officer
|
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William
G. Dumencu
|
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/s/
Thomas N. Davidson
|
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Director
|
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Thomas
N. Davidson
|
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/s/
Adrienne L. Graves
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Director
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Adrienne
L. Graves
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/s/
Richard L. Lindstrom
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Director
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Richard
L. Lindstrom
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/s/
Donald Rindell
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Director
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Donald
Rindell
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/s/
Elias Vamvakas
|
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Chairman
of the Board and Director
|
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Elias
Vamvakas
|
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EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
4.1
|
Restated
Certificate of Incorporation filed with the Secretary of State of the
State of Delaware on October 7, 2008 (incorporated by reference to Exhibit
3.3 to the Registrant’s report on Form 8-K, filed on October 9,
2008)
|
|
4.2
|
Amended
and Restated By-laws (incorporated by reference to Exhibit 3.4 to
Amendment No. 3 to the Registrant’s registration statement on Form S-1,
filed on November 16, 2004)
|
|
|
OcuSense,
Inc. 2003 Stock Option/Stock Issuance Plan
|
|
4.4
|
Option
Agreement between the Registrant and Stephen Parks dated October 4, 2005
(incorporated by reference to Exhibit 10.4 to the Registrant’s Quarterly
Report on Form 10-Q filed on November 10, 2005)
|
|
|
Opinion
of Torys LLP
|
|
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Consent
of Ernst & Young LLP
|
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23.2
|
Consent
of Torys LLP (included in Exhibit 5.1)
|
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24.1
|
Powers
of Attorney (included on the signature page of this Registration
Statement)
|
8
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