Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
____________________
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
___________________
ALKERMES, INC.
| Pennsylvania | 23-2472830 | |
| (State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
ALKERMES, INC.
88 SIDNEY STREET
CAMBRIDGE, MASSACHUSETTS 02139-4234
TELEPHONE: (617) 494-0171
(Address, including zip code, and telephone number, including area code,
of registrant’s principal executive offices)
ALKERMES, INC. 2002 RESTRICTED STOCK AWARD PLAN
(Full title of the plan)
Richard F. Pops
Chief Executive Officer
ALKERMES, INC.
88 Sidney Street
Cambridge, Massachusetts 02139-4234
Telephone: (617) 494-0171
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Jennifer L. Miller, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
Telephone: (215) 864-8619
CALCULATION OF REGISTRATION FEE
| Proposed Maximum | Proposed Maximum | |||||||||||||||
| Title of Securities | Amount to be | Offering Price Per | Aggregate Offering | Amount of | ||||||||||||
| to be Registered | Registered(1) | Share(2) | Price(2) | Registration Fee | ||||||||||||
Common Stock,
Par value $.01 per
share |
500,000 | $ | 12.58 | $ | 6,290,000 | $ | 508.86 | |||||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, this registration statement shall also be deemed to cover an indeterminate number of additional shares of Common Stock issuable in the event the number of outstanding shares of the Company is increased by split-up, reclassification, stock dividend and the like. | |
| (2) | Estimated solely for the purpose of calculating the registration fee. In accordance with Rule 457(h), the price shown is based upon the average of the high and low price of the Company’s Common Stock on July 16, 2003, $12.58, as reported on the Nasdaq National Market for securities of the same class as those to be offered. |
PART II — INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Exchange Act of 1934 (the “Exchange Act”) by Alkermes, Inc. (the “Company”) (File No. 1-14131) or pursuant to the Securities Act of 1933, as amended (the “Securities Act”) are incorporated herein by reference:
| (a) | Annual Report on Form 10-K for the fiscal year ended March 31, 2003; | ||
| (b) | Item 1 of Registration Statement of the Company on Form 8-A dated June 28, 1991, as amended by a Registration Statement of the Company on Form 8-A/A dated January 17, 1997; and | ||
| (c) | Item 1 of Registration Statement of the Company on Form 8-A dated May 2, 2003. |
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, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing such documents. Any statement contained herein or in a document incorporated by reference 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 such statement is modified or superseded by any other subsequently filed document which is incorporated or is deemed to be incorporated by reference herein. Any such 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.
Morris Cheston, Jr., Esquire, Secretary of the Company and Jennifer L. Miller, Esquire, Secretary of Alkermes Investments, Inc., a wholly-owned subsidiary of Alkermes, Inc., are both partners in the law firm of Ballard Spahr Andrews & Ingersoll, LLP which has given an opinion passing upon the validity of the securities being registered hereby.
Item 6. Indemnification of Officers and Directors.
The Pennsylvania Business Corporation Law of 1988, as amended, authorizes the Company to grant indemnification to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including reimbursement for expenses incurred) arising under the Securities Act of 1933, as amended. In addition, the Company has also obtained Directors’ and Officers’ Liability Insurance in the amount of $20,000,000 which insures its officers and directors against certain liabilities such persons may incur in their capacities as officers or directors of the Company.
Article 5 of the Company’s By-Laws provides as follows:
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5.1 INDEMNIFICATION OF DIRECTORS, OFFICERS, AND OTHER PERSONS. The
Corporation shall indemnify any director, officer, employee or agent of the
Corporation or any of its subsidiaries who was or is an “authorized
representative” of the Corporation (which shall mean, for the purpose of this
Article, a director or officer of the Corporation, or a person serving at the
request of the Corporation as a director, officer, partner, fiduciary or
trustee of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise) and who was or is a “party” (which shall
include for purposes of this Article the giving of testimony or similar
involvement) or is threatened to be made a party to any “proceeding” (which
shall mean for purposes of this Article any threatened, pending or completed
action, suit, appeal or other proceeding of any nature, whether civil,
criminal, administrative or investigative, whether formal or informal, and
whether brought by or in the right of the Corporation, its shareholders or
otherwise) by reason of the fact that such person was or is an authorized
representative of the Corporation to the fullest extent permitted by law,
including without limitation indemnification against expenses (which shall
include for purposes of this Article attorneys’ fees and disbursements),
damages, punitive damages, judgments, penalties, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection with
such proceeding unless the act or failure to act giving rise to the claim is
finally determined by a court to have constituted willful misconduct or
recklessness. If an authorized representative is not entitled to
indemnification in respect of a portion of any liabilities to which such person
may be subject, the Corporation shall nonetheless indemnify such person to the
maximum extent for the remaining portion of the liabilities.
5.2 ADVANCEMENT OF EXPENSES. The Corporation shall pay the expenses
(including attorneys’ fees and disbursements) actually and reasonably incurred
in defending a proceeding on behalf of any person entitled to indemnification
under Section 5.1 in advance of the final disposition of such proceeding upon
receipt of an undertaking by or on behalf of such person to repay such amount
if it shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation as authorized in this Article and may pay such
expenses in advance on behalf of any employee or agent on receipt of a similar
undertaking. The financial ability of such authorized representative to make
such repayment shall not be prerequisite to the making of an advance.
5.3 EMPLOYEE BENEFIT PLANS. For purposes of this Article, the Corporation
shall be deemed to have requested an officer, director, employee or agent to
serve as fiduciary with respect to an employee benefit plan where the
performance by such person of duties to the Corporation also imposes duties on,
or otherwise involves services by, such person as a fiduciary with respect to
the plan; excise taxes assessed on an authorized representative with respect to
any transaction with an employee benefit plan shall be deemed “fines”; and
action taken or omitted by such person with respect to an employee benefit plan
in the performance of duties for a purpose reasonably believed to be in the
interest of the participants and beneficiaries of the plan shall be deemed to
be for a purpose which is not opposed to the best interests of the Corporation.
5.4 SECURITY FOR INDEMNIFICATION OBLIGATIONS. To further effect, satisfy
or secure the indemnification obligations provided herein or otherwise, the
Corporation may maintain insurance, obtain a letter of credit, act as
self-insurer, create a reserve, trust, escrow, cash collateral or other fund or
account, enter into indemnification agreements, pledge or grant a security
interest in any assets or properties of the Corporation, or use any other
mechanism or arrangement whatsoever in such amounts, at such costs, and upon
such other terms and conditions as the Board of Directors shall deem
appropriate.
5.5 RELIANCE UPON PROVISIONS. Each person who shall act as an authorized
representative of the Corporation shall be deemed to be doing so in reliance
upon the rights of indemnification provided by this Article.
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5.6 AMENDMENT OR REPEAL. All rights of indemnification under this Article
shall be deemed a contract between the Corporation and the person entitled to
indemnification under this Article pursuant to which the Corporation and each
such person intend to be legally bound. Any repeal, amendment or modification
hereof shall be prospective only and shall not limit, but may expand, any
rights or obligations in respect of any proceeding whether commenced prior to
or after such change to the extent such proceeding pertains to actions or
failures to act occurring prior to such change.
5.7 SCOPE OF ARTICLE. The indemnification, as authorized by this Article,
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
agreement, vote of shareholders or disinterested directors or otherwise, both
as to action in an official capacity and as to action in any other capacity
while holding such office. The indemnification and advancement of expenses
provided by, or granted pursuant to, this Article shall continue as to a person
who has ceased to be an officer, director, employee or agent in respect of
matters arising prior to such time, and shall inure to the benefit of the
heirs, executors and administrators of such person.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Table of Contents
Table of Contents
| 4.1 | Specimen of Common Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4 to the Registrant’s Registration Statement on Form S-1 as amended (File No. 33-40250)). | |
| 4.2 | Specimen of Non-Voting Common Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4.4 to the Registrant’s Report on Form 10-K for the fiscal year ended March 31, 1999). | |
| 4.3 | Specimen of 2002 Preferred Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on December 13, 2002). | |
| 4.4 | Indenture, dated as of February 18, 2000, between Alkermes, Inc. and State Street Bank and Trust Company, as Trustee (3.75% Subordinated Notes). (Incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-3, as amended (File No. 333-31354)). | |
| 4.5 | Form of Indenture between Alkermes, Inc. and State Street Bank and Trust Company, as Trustee (6.52% Senior Notes). (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-101464)). | |
| 4.6 | Rights Agreement, dated February 7, 2003, as amended, between Alkermes, Inc. and EquiServe Trust Co., N.A., as Rights Agent. (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form 8-A filed on May 2, 2003). | |
| 5 | Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the legality of the securities to be offered. | |
| 23.1 | Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as part of Exhibit 5). |
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| 23.2 | Independent Auditors’ Consent of Deloitte & Touche LLP. | |
| 23.3 | Consent of Independent Auditors of Ernst & Young LLP. | |
| 24 | Power of Attorney (included in signature page). | |
| 99 | Alkermes, Inc. 2002 Restricted Stock Award Plan (Incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002). |
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 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 a 20% 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) do not apply if the registration statement is on Form S-3 or Form S-8, and 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 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.
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’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
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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 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.
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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 Cambridge, Commonwealth of Massachusetts, on July 21, 2003.
| ALKERMES, INC. | ||||||||||||
| By | /s/ Richard F. Pops | |||||||||||
| Richard F. Pops | ||||||||||||
| Chief Executive Officer | ||||||||||||
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
Each person whose signature appears below in so signing also makes, constitutes and appoints Richard F. Pops and James M. Frates, and each of them, his true and lawful attorney-in-fact, with full power of substitution, for him in any and all capacities, to execute and cause to be filed with the Securities and Exchange Commission any and all amendments and post-effective amendments to this Registration Statement, with exhibits thereto and other documents in connection therewith, and hereby ratifies and confirms all that said attorney-in-fact or his substitute or substitutes may do or cause to be done by virtue hereof.
| Signature | Title | Date | ||
Michael A. Wall |
Director and Chairman of the Board | |||
| /s/ Richard F. Pops
Richard F. Pops |
Director and Chief Executive Officer (Principal Executive Officer) | July 21, 2003 | ||
| /s/ Robert A. Breyer
Robert A. Breyer |
Director | July 21, 2003 | ||
| /s/ James M. Frates
James M. Frates |
Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer) | July 21, 2003 |
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| Signature | Title | Date | ||
| /s/ Floyd E. Bloom
Floyd E. Bloom |
Director | July 21, 2003 | ||
| /s/ John K. Clarke
John K. Clarke |
Director | July 21, 2003 | ||
| /s/ Alexander Rich
Alexander Rich |
Director | July 21, 2003 | ||
| /s/ Paul Schimmel
Paul Schimmel |
Director | July 21, 2003 | ||
| /s/ Gerri Henwood Gerri Henwood |
Director | July 21, 2003 | ||
| /s/ Paul J. Mitchell Paul J. Mitchell |
Director | July 21, 2003 |
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EXHIBIT INDEX
| Number | Exhibit | |
| 4.1 | Specimen of Common Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4 to the Registrant’s Registration Statement on Form S-1 as amended (File No. 33-40250)). | |
| 4.2 | Specimen of Non-Voting Common Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4.4 to the Registrant’s Report on Form 10-K for the fiscal year ended March 31, 1999). | |
| 4.3 | Specimen of 2002 Preferred Stock Certificate of Alkermes, Inc. (Incorporated by reference to Exhibit 4.1 to the Registrant’s Current Report on Form 8-K filed on December 13, 2002). | |
| 4.4 | Indenture, dated as of February 18, 2000, between Alkermes, Inc. and State Street Bank and Trust Company, as Trustee (3.75% Subordinated Notes). (Incorporated by reference to Exhibit 4.6 to the Registrant’s Registration Statement on Form S-3, as amended (File No. 333-31354)). | |
| 4.5 | Form of Indenture between Alkermes, Inc. and State Street Bank and Trust Company, as Trustee (6.52% Senior Notes). (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-101464)). | |
| 4.6 | Rights Agreement, dated February 7, 2003, as amended, between Alkermes, Inc. and EquiServe Trust Co., N.A., as Rights Agent. (Incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form 8-A filed on May 2, 2003). | |
| 5 | Opinion of Ballard Spahr Andrews & Ingersoll, LLP as to the legality of the securities to be offered. | |
| 23.1 | Consent of Ballard Spahr Andrews & Ingersoll, LLP (included as part of Exhibit 5). | |
| 23.2 | Independent Auditors’ Consent of Deloitte & Touche LLP. | |
| 23.3 | Consent of Independent Auditors of Ernst & Young LLP. | |
| 24 | Power of Attorney (included in signature page). | |
| 99 | Alkermes, Inc. 2002 Restricted Stock Award Plan (Incorporated by reference to Exhibit 10.2 to the Registrant’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2002). |