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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ALBANY MOLECULAR RESEARCH, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 14-1742717
(State of Incorporation) (I.R.S. Employer Identification No.)
21 Corporate Circle
Albany, New York 12203
(518) 464-0279
(Address of Principal Executive Offices)
ALBANY MOLECULAR RESEARCH, INC. 1998 STOCK OPTION AND INCENTIVE PLAN
ALBANY MOLECULAR RESEARCH, INC. 1998 EMPLOYEE STOCK PURCHASE PLAN
(Full Titles of the Plans)
----------------------
THOMAS E. D'AMBRA, PH.D.
Chairman and Chief Executive Officer
Albany Molecular Research, Inc.
21 Corporate Circle
Albany, New York 12203
(518) 464-0279
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
STUART M. CABLE, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Title of Securities Being Amount to Be Proposed Maximum Proposed Maximum Amount of
Registered Registered Offering Price Per Share(3) Aggregate Offering Price(3) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01 1,802,021(1) $29.25 $61,484,115 $17,093
per share 300,000(2)
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2,102,021
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</TABLE>
(1) Shares issued or available for issuance under the Albany Molecular
Research, Inc. 1998 Stock Option and Incentive Plan, as amended (the "Stock
Option Plan"); plus such additional number of shares as may be required
pursuant to the Stock Option Plan in the event of a stock dividend, reverse
stock split, split-up, recapitalization or other similar event.
(2) Shares issued or available for issuance under the Albany Molecular
Research, Inc. 1998 Employee Stock Purchase Plan, as amended (the "Stock
Purchase Plan"); plus such additional number of shares as may be required
pursuant to the Stock Purchase Plan in the event of a stock dividend,
reverse stock split, split-up, recapitalization or other similar event.
(3) This estimate is based on the average of the high and low prices for the
Common Stock as reported on the Nasdaq National Market on June 8, 1999
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as
amended, solely for purposes of determining the amount of the registration
fee.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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Albany Molecular Research, Inc. (the "Company") hereby incorporates by
reference the documents listed in (a) through (c) below, which have previously
been filed with the Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998, as filed with the Commission on March 31, 1999;
(b) The Company's Quarterly Report on Form 10-Q for the quarterly period
ended March 31, 1999, as filed with the Commission on May 14, 1999;
and
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A, as filed with the
Commission on January 29, 1999, including any amendment or report
filed for the purpose of updating such description.
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all securities offered hereunder
have been sold or which deregisters all securities then remaining unsold, 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.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
In accordance with Section 145 of the General Corporation Law of the State
of Delaware, Article VII of the Company's Restated Certificate of Incorporation
(the "Certificate") provides that no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) in respect of certain unlawful dividend payments or
stock redemptions or repurchases, or (iv) for any transaction from which the
director derived an improper personal benefit. In addition, the Certificate
provides that if the Delaware General Corporation Law is amended to authorize
the further elimination or limitation of the liability of directors, then the
liability of a director of the Company shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
Article V of the Company's Amended and Restated By-laws (the "By-laws")
provides that the Company shall indemnify its directors, officers and, in the
discretion of the Board of Directors, certain non-officer employees under
certain circumstances against expenses (including attorneys' fees, judgments,
fines and amounts paid in settlement) reasonably incurred in connection with the
defense or settlement of any threatened, pending or completed legal proceeding
in which any such person is involved by reason of the fact that such person is
or was a director, officer or employee of the
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Company if such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company, and, with
respect to criminal actions or proceedings, if such person had no reasonable
cause to believe his or her conduct was unlawful. Article V of the By-laws
requires the advancement of expenses to directors in proceedings involving such
directors in most circumstances and, at the discretion of the Board of
Directors, allows the advancement of expenses to officers or non-officer
employees in proceedings involving such officers or non-officer employees.
The Company has entered into indemnification agreements with its directors
reflecting the provisions of the By-laws.
Item 8. Exhibits.
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The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
Exhibit
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4.1 Restated Certificate of Incorporation of the Company (incorporated
herein by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998 (File No.
000-25323)).
4.2 Amended and Restated By-laws of the Company (incorporated herein by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1998 (File No. 000-25323)).
4.3 Albany Molecular Research, Inc. 1998 Stock Option and Incentive Plan
(incorporated herein by reference to Exhibit 10.2 to the Company's
Registration Statement on Form S-1, as amended (Registration No.
333-58795)).
4.4 Albany Molecular Research, Inc. 1998 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.4 to the Company's
Registration Statement on Form S-1, as amended (Registration No.
333-58795)).
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
*23.1 Consent of KPMG LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney (included on signature page).
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*Filed herewith
Item 9. Undertakings.
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(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:
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(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 percent 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) herein do
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not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the undersigned
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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 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
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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 Albany, the State of New York, on this 11th day of
June, 1999.
ALBANY MOLECULAR RESEARCH, INC.
By: /s/ Thomas E. D'Ambra, Ph.D.
------------------------------------
Thomas E. D'Ambra, Ph.D.
Chairman and Chief Executive Officer
KNOWN ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of Thomas E. D'Ambra, Ph.D. and
Donald E. Kuhla, Ph.D. such person's true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution for such person and in such
person's 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 each said
attorney-in-fact and agent 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 any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, may lawfully do or
cause to be done by virtue hereof.
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 date indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Thomas E. D'Ambra, Ph.D. Chairman of the Board, Chief Executive June 11, 1999
- -------------------------------- Officer and Director (Principal
Thomas E. D'Ambra, Ph.D. Executive Officer)
/s/ Donald E. Kuhla, Ph.D. President, Chief Operating Officer, June 11, 1999
- -------------------------------- Secretary and Director
Donald E. Kuhla, Ph.D.
/s/ David P. Waldek Chief Financial Officer and Treasurer June 11, 1999
- -------------------------------- (Principal Financial Officer)
David P. Waldek
/s/ Chester J. Opalka Vice President, Director of Laboratory June 11, 1999
- -------------------------------- Operations and Director
Chester J. Opalka
Director
- --------------------------------
Anthony P. Tartaglia, M.D.
Director
- --------------------------------
Frank W. Haydu III
</TABLE>
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EXHIBIT INDEX
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Exhibit No. Description Page
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<C> <S> <C>
4.1 Restated Certificate of Incorporation of the Company (incorporated herein
by reference to Exhibit 3.2 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998 (File No. 000-25323)).
4.2 Amended and Restated By-laws of the Company (incorporated herein by
reference to Exhibit 3.1 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1998 (File No. 000-25323)).
4.3 Albany Molecular Research, Inc. 1998 Stock Option and Incentive Plan
(incorporated herein by reference to Exhibit 10.2 to the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-58795)).
4.4 Albany Molecular Research, Inc. 1998 Employee Stock Purchase Plan
(incorporated herein by reference to Exhibit 10.4 to the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-58795)).
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities
being registered.
*23.1 Consent of KPMG LLP.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on signature page).
</TABLE>
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*Filed herewith
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EXHIBIT 5.1
GOODWIN, PROCTER & HOAR LLP
Counsellors at Law
Exchange Place
Boston, Massachusetts 02109-2881
June 11, 1999
Albany Molecular Research, Inc.
21 Corporate Circle
Albany, New York 12203
Re: Registration Statement on Form S-8
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Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Albany
Molecular Research, Inc., a Delaware corporation (the "Company"), in connection
with the preparation and filing with the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "Securities Act"), of a
Registration Statement on Form S-8 (the "Registration Statement") relating to
(i) 1,802,021 shares (the "Option Shares") of the Company's common stock, par
value $.01 per share ("Common Stock"), which the Company may issue pursuant to
the Albany Molecular Research, Inc. 1998 Stock Option and Incentive Plan (the
"Stock Option Plan"), and (ii) 300,000 shares (together with the Option Shares,
the "Shares") of Common Stock which the Company may issue pursuant to the Albany
Molecular Research, Inc. 1998 Employee Stock Purchase Plan (the "Stock Purchase
Plan," and together with the Stock Option Plan, the "Plans").
As counsel for the Company, we have examined copies of the Plans, the
Company's Restated Certificate of Incorporation and Amended and Restated
By-laws, each as presently in effect, and such records, certificates and other
documents of the Company as we have deemed necessary or appropriate for the
purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that upon the issuance
and delivery of the Shares against payment therefor in accordance with the terms
of the Stock Option Plan or the Stock Purchase Plan, as the case may be, the
Shares will be validly issued, fully paid and non-assessable shares of the
Company's Common Stock.
The foregoing assumes all requisite steps will be taken to comply with
the requirements of the Securities Act and applicable requirements of state laws
regulating the offer and sale of securities.
We hereby consent to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.1
ACCOUNTANTS' CONSENT
The Board of Directors
Albany Molecular Research, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of Albany Molecular Research, Inc. (relating to the Albany Molecular
Research, Inc. 1998 Stock Option and Incentive Plan and the Albany Molecular
Research, Inc. 1998 Employee Stock Purchase Plan) of our report dated March 19,
1999 relating to the consolidated balance sheets of Albany Molecular Research,
Inc. and subsidiary as of December 31, 1998 and 1997, and the related
consolidated statements of operations, stockholders' equity and cash flows for
each of the years in the three-year period ended December 31, 1998, which report
appears in the December 31, 1998 Annual Report on Form 10-K of Albany Molecular
Research, Inc.
/s/ KPMG LLP
Albany, New York
June 11, 1999
