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As filed with the Securities and Exchange Commission on June 13, 2000
Registration No. 333-_________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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Insmed Incorporated
(Exact name of registrant as specified in its charter)
VIRGINIA Issuer: 54-1972729
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
800 East Leigh Street
Richmond, Virginia 23219
(Address of principal executive offices)
------------
Insmed Incorporated Employee Stock Purchase Plan
(Full title of the plan)
------------
Michael D. Baer
Chief Financial Officer
Insmed Incorporated
800 East Leigh Street
Richmond, Virginia 23219
(804) 828-6893
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
T. Justin Moore, III, Esquire
Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
(804) 788-8200
_______________
CALCULATION OF REGISTRATION FEE
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=====================================================================================================================
Proposed maximum Proposed maximum
Title of securities Amount to be offering price aggregate Amount of
to be registered registered per share offering price registration fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share 1,000,000 Shares $3.344* $3,344,000* $883.00*
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</TABLE>
(*) Calculated pursuant to Rule 457(c) of the Securities Act of 1933, as
amended (the "Securities Act"), based on the average of the high and low prices
of the Insmed Incorporated common stock (the "Common Stock") on The Nasdaq
SmallCap Market on June 12, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with the Securities and Exchange Commission
(the "Commission").
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with the Commission.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Insmed Incorporated (the "Company") with
the Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), are hereby incorporated by reference into this Registration
Statement:
(a) The Company's Prospectus, dated as of May 4, 2000, contained in the
Company's Registration Statement on Form S-4 (File No. 333-30098), as
amended, filed with the Commission pursuant to the Securities Act of
1933, as amended (the "Securities Act"); and
(b) the Description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission
under the Exchange Act on June 1, 2000 (Registration No. 0-30739),
including any amendment or report filed for the purpose of updating
such description.
In addition to the foregoing, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act,
prior to the filing of a post-effective amendment which indicates that all
securities registered hereunder have been issued or which deregisters all
securities offered then remaining unsold, shall be deemed incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement, including financial statements,
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 which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. 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 Virginia Stock Corporation Act permits, and the Company's Articles of
Incorporation require, indemnification of the Company's directors and officers
in a variety of circumstances, which may include indemnification for liabilities
under the Securities Act. Under Sections 13.1-697 and 13.1-702 of the Virginia
Stock Corporation Act, a Virginia corporation generally is authorized to
indemnify its directors and officers in civil or criminal actions if they acted
in good faith and believed their conduct to be in the best interests of the
corporation and, in the case of criminal actions, had no reasonable cause to
believe that the conduct was unlawful. The Company's Articles of Incorporation
require indemnification of directors and officers with respect to certain
liabilities, expenses and other amounts imposed upon them by reason of having
been a director or officer, except in the case of willful misconduct or a
knowing violation of criminal law. In addition, the Company carries insurance on
behalf of directors, officers, employees or agents that may cover liabilities
under the Securities Act. As permitted by the Virginia Stock Corporation Act,
the Company's Articles of Incorporation provide that in any proceeding
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brought by a shareholder of the Company in the right of the Company or brought
by or on behalf of shareholders of the Company, no director or officer of the
Company shall be liable to the Company or its shareholders for monetary damages
with respect to any transaction, occurrence or course of conduct, whether prior
or subsequent to the effective date of such Articles of Incorporation, except
for liability resulting from such person's having engaged in willful misconduct
or a knowing violation of the criminal law or any federal or state securities
law. Sections 13.1-696 to -704 of the Virginia Stock Corporation Act are hereby
incorporated herein by reference.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
Exhibit No.
-----------------
4.1 Article VI of the Articles of Incorporation of Insmed Incorporated
(incorporated herein by reference to Annex H to the Joint Proxy
Statement/Prospectus included in Insmed Incorporated's Registration
Statement on Form S-4 filed with the Commission on February 10, 2000,
as amended (File No. 333-30098)).
4.2 Insmed Incorporated Employee Stock Purchase Plan.
5 Opinion of Hunton & Williams as to the legality of the securities
being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on Signature Page).
Item 9. Undertakings.
A. Subsequent Disclosure.
The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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 thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this 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
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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 this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do 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 Company,
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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. Incorporation by Reference.
The Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is
incorporated by reference in this 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. Commission Position on Indemnification.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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 Securities 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 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 Richmond, Commonwealth of Virginia, on the 25th day
of May, 2000.
INSMED INCORPORATED
(Registrant)
BY: /s/ Michael D. Baer
-------------------
Michael D. Baer
Chief Financial Officer
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POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated. Each of the undersigned, in his capacity
as officer or director, or both, as the case may be, of Insmed Incorporated does
hereby appoint Geoffrey Allan, Ph.D. and Michael D. Baer, and each of them
severally, his true and lawful attorneys or attorney to execute in his name,
place and stead, in his capacity as director or officer, or both, as the case
may be, this Registration Statement and any and all amendments and post-
effective amendments thereto, and all instruments necessary or incidental in
connection therewith and to file the same with the Securities and Exchange
Commission. Each of said attorneys shall have power to act hereunder with or
without the other attorney and shall have full power and authority to do and
perform in the name and on behalf of each of said directors or officers, or both
as the case may be, every act whatsoever requisite or necessary to be done in
the premises, as fully and to all intents and purposes as which each of said
officers or directors, or both, as the case may be, might or could do in person,
hereby ratifying and confirming all that said attorneys or attorney may lawfully
do or cause to be done by virtue hereof.
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Signature Title Date
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<S> <C> <C>
/s/ Geoffrey Allan President, Chief Executive June 13, 2000
---------------------------- Officer and Chairman of the
Geoffrey Allan, Ph.D. Board (Principal Executive
Officer)
/s/ Michael D. Baer Chief Financial Officer May 25, 2000
---------------------------- (Principal Financial and
Michael D. Baer Accounting Officer)
/s/ Kenneth G. Condon Director May 25, 2000
----------------------------
Kenneth G. Condon
/s/ Graham K. Crooke Director May 25, 2000
----------------------------
Graham K. Crooke, MB.BS
/s/ Steinar J. Engelsen Director May 25, 2000
----------------------------
Steinar J. Engelsen, M.D.
---------------------------- Director _____________
Edgar G. Engleman, M.D.
</TABLE>
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EXHIBIT INDEX
Exhibit No. Description
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4.1 Article VI of the Articles of Incorporation of Insmed
Incorporated (incorporated herein by reference to Annex H to the
Joint Proxy Statement/Prospectus included in Insmed
Incorporated's Registration Statement on Form S-4 filed with the
Commission on February 10, 2000, as amended (File No. 333-30098)).
4.2 Insmed Incorporated Employee Stock Purchase Plan.
5 Opinion of Hunton & Williams as to the legality of the securities
being registered.
23.1 Consent of Hunton & Williams (included in Exhibit 5).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Ernst & Young LLP.
24 Powers of Attorney (included on Signature Page).
8
