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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.
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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.
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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
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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
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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
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EXHIBIT INDEX
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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.