sv8
As filed with the Securities and Exchange Commission on February 9, 2009
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALKERMES, INC.
(Exact Name of Company as specified in its charter)
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| Pennsylvania
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23-2472830 |
| (State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.) |
ALKERMES, INC.
88 SIDNEY STREET
CAMBRIDGE, MASSACHUSETTS 02139-4234
(Address, including zip code, of registrant’s principal executive offices)
ALKERMES, INC. 2008 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
David A. Broecker
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:
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| Mitchell S. Bloom, Esq.
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Kathryn L. Biberstein, Esq. |
| Robert E. Puopolo, Esq.
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Alkermes, Inc. |
| Goodwin Procter LLP
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88 Sidney Street |
| 53 State Street
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Cambridge, MA 02139 |
| Boston, MA 02109
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Telephone: (617) 583-6255 |
| Telephone: (617) 570-1000 |
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in
Rule 12b-2 of the Exchange Act.
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| Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Maximum |
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Maximum |
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Amount |
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Offering |
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Aggregate |
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to be |
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Price Per |
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Offering |
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Amount of |
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Title of Securities to be registered |
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Registered (2) (5) |
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Share |
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Price |
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Registration Fee |
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Common Stock, par value $0.01 per share(1) |
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258,000 |
(3) |
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$ |
11.44 |
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$ |
2,951,520 |
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Common Stock, par value $0.01 per share(1) |
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109,000 |
(3) |
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10.10 |
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1,100,900 |
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Common Stock, par value $0.01 per share(1) |
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7,000 |
(3) |
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10.71 |
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74,970 |
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Common Stock, par value $0.01 per share(1) |
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313,000 |
(3) |
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11.98 |
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3,749,740 |
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Common Stock, par value $0.01 per share(1) |
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25,760,858 |
(4) |
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11.04 |
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284,399,873 |
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Total: |
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26,447,858 |
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$ |
292,277,003 |
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$ |
11,487 |
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| (1) |
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This Registration Statement also relates to the Rights to purchase
shares of Series A Junior Participating Preferred Stock of the
Registrant which are attached to all shares of Common Stock pursuant
to the terms of the Registrant’s Rights Agreement dated February 7,
2003. Until the occurrence of certain prescribed events, the Rights
are not exercisable, are evidenced by the certificates for the Common
Stock and will be transferred only with such stock. |
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Pursuant to Rule 416(c) 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, recapitalization, and certain other
capital adjustments and the like. |
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Such shares are issuable upon the exercise of outstanding options with
fixed exercise prices. Pursuant to Rule 457(h), the aggregate offering
price and fee have been computed upon the basis of the price at which
such options may be exercised. The offering price per share set forth
for such shares is the exercise price per share at which such options
are exercisable. |
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Estimated solely for the purpose of calculating the registration fee.
In accordance with Rules 457(c) and 457(h), the proposed maximum
offering price per share, the proposed maximum aggregate offering
price, and the registration fee shown has been computed based upon the
average of the high and low sales price of the Company’s Common Stock
on February 6, 2009, $11.04, as reported on the Nasdaq Global Market
with respect to securities for which options have not been granted. |
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The maximum number of shares of Common Stock reserved and available
for issuance under the Plan includes: (i) 6,400,000 shares, plus
(ii) up to 3,070,779 shares of Common Stock which were previously
available for grant under the Alkermes, Inc. 1999 Stock Option Plan,
the Alkermes, Inc. 2002 Restricted Stock Award Plan and the Alkermes,
Inc. 2006 Stock Option Plan For Non-Employee Directors (together, the
“Old Stock Plans”) and now available for grant under the Plan, plus
(iii) up to 16,977,079 shares of Common Stock underlying outstanding
grants pursuant to the Old Stock Plans that may be available for grant
under the Plan if they are forfeited, cancelled, repurchased or are
terminated (other than by exercise). |
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Part I will be sent or given to
employees, directors or others as specified by Rule 428(b)(1). In accordance with the rules and
regulations of the Securities and Exchange Commission (the “Commission”) and the Introductory Note
to Part I of Form S-8, such documents are not being filed with the Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Part I will be sent or given to
employees, directors or others as specified by Rule 428(b)(1). In accordance with the rules and
regulations of the Commission and the Introductory Note to Part I of Form S-8, such documents are
not being filed with the Commission either as part of this Registration Statement or as
prospectuses or prospectus supplements pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission are incorporated by reference in this
Registration Statement:
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The Registrant’s Annual Report on Form 10-K for the fiscal year ended March 31, 2008 filed with the Commission on May 30,
2008;
The Registrant’s Quarterly Report on Form 10-Q for the three months ended June 30, 2008 filed with the Commission on
August 7, 2008;
The Registrant’s Quarterly Report on Form 10-Q for the three months ended September 30, 2008 filed with the Commission on
November 7, 2008;
The Registrant’s Quarterly Report on Form 10-Q for the three months ended December 31, 2008 filed with the Commission on
February 9, 2009;
The Registrant’s Current Reports on Forms 8-K filed with the Commission on May 16, 2008; May 28, 2008; June 16, 2008 (Item
8.01 only); October 7, 2008; November 4, 2008; and December 1, 2008 (Item 1.02 only). |
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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 March 31, 2008; and |
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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 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 filing of a post-effective
amendment which indicates that all securities offered herein have been sold or which deregisters
all securities then remaining unsold, 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
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. The Company has also obtained
Directors’ and Officers’ Liability Insurance which insures its officers and directors against
certain liabilities such persons may incur in their capacities as officers or directors of the
Company. In addition, the Company’s By-laws contain the following provisions:
“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.
“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.
See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits
filed as part of this Registration Statement on Form S-8, which Exhibit Index is incorporated
herein by reference.
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:
(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;
(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 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.
(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 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company 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, in the Commonwealth of Massachusetts, on this 9th day of
February 2009.
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ALKERMES, INC.
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By: |
/s/ David A. Broecker
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David A. Broecker |
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Chief Executive Officer |
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POWER OF ATTORNEY AND SIGNATURES
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 David
A. Broecker 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.
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| SIGNATURE |
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TITLE |
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DATE |
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| /s/ Richard F. Pops
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Director and Chairman of the Board
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February 9, 2009 |
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| Richard F. Pops |
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| /s/ David A. Broecker
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President and Chief Executive Officer
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February 9, 2009 |
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| David A. Broecker
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(Principal Executive Officer) |
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| /s/ James M. Frates
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Senior Vice President, Chief Financial
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February 9, 2009 |
James M. Frates
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Officer and Treasurer
(Principal Financial and Accounting Officer) |
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| /s/ David W. Anstice
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Director
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February 9, 2009 |
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| David W. Anstice |
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| /s/ Floyd E. Bloom
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Director
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February 9, 2009 |
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| Floyd E. Bloom |
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| /s/ Robert A. Breyer
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Director
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February 9, 2009 |
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| Robert A. Breyer |
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| /s/ Gerri Henwood
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Director
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February 9, 2009 |
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| Gerri Henwood |
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| /s/ Paul J. Mitchell
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Director
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February 9, 2009 |
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| Paul J. Mitchell |
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| /s/ Alexander Rich
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Director
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February 9, 2009 |
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| Alexander Rich |
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| /s/ Mark B. Skaletsky
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Director
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February 9, 2009 |
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| Mark B. Skaletsky |
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| /s/ Michael A. Wall
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Director and Chairman Emeritus
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February 9, 2009 |
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| Michael A. Wall |
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INDEX TO EXHIBITS
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| Exhibit |
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| No. |
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Description of Exhibit |
4.1
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Third Amended and Restated Articles of Incorporation as filed with the Pennsylvania Secretary of State on
June 7, 2001. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Report on Form 10-K for the
fiscal year ended March 31, 2001 (File No. 001-14131).) |
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4.2
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Amendment to Third Amended and Restated Articles of Incorporation as filed with the Pennsylvania Secretary
of State on December 16, 2002 (2002 Preferred Stock Terms). (Incorporated by reference to Exhibit 3.1 to
the Registrant’s Current Report on Form 8-K filed on December 16, 2002 (File No. 001-14131).) |
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4.3
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Amendment to Third Amended and Restated Articles of Incorporation as filed with the Pennsylvania Secretary
of State on May 14, 2003 (Incorporated by reference to Exhibit A to Exhibit 4.1 to the Registrant’s Report
on Form 8-A filed on May 2, 2003 (File No. 000-19267).) |
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4.4
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Second Amended and Restated By-Laws of Alkermes, Inc. (Incorporated by reference to Exhibit 3.2 to the
Registrant’s Current Report on Form 8-K filed on September 28, 2005.) |
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4.5
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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. 033-40250).) |
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4.6
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Rights Agreement, dated as of 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 Report on Form 8-A
filed May 2, 2003 (File No. 000-19267).) |
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5.1
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Opinion of Ballard Spahr Andrews & Ingersoll, LLP (filed herewith). |
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23.1
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Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit 5.1). |
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23.2
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Consent of PricewaterhouseCoopers LLP (filed herewith). |
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23.3
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Consent of Deloitte & Touche LLP (filed herewith). |
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24.1
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Power of Attorney (included in signature page). |
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99.1
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Alkermes, Inc. 2008 Stock Option and Incentive Plan (Incorporated by reference to Exhibit 10.1
to the Registrant’s Current Report on Form 8-K filed on October 7, 2008.) |
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99.2
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Alkermes, Inc. 2008 Stock Option and Incentive Plan, Stock Option Award Certificate (Incentive
Stock Option). (Incorporated by reference to Exhibit 10.2 to the Registrant’s Report on Form
8-K filed on October 7, 2008.) |
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99.3
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Alkermes, Inc. 2008 Stock Option and Incentive Plan, Stock Option Award Certificate
(Non-Qualified Option). (Incorporated by reference to Exhibit 10.3 to the Registrant’s Report
on Form 8-K filed on October 7, 2008.) |
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99.4
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Alkermes, Inc. 2008 Stock Option and Incentive Plan, Stock Option Award Certificate
(Non-Employee Director). (Incorporated by reference to Exhibit 10.4 to the Registrant’s Report
on Form 8-K filed on October 7, 2008.) |