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Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
--------------------------------
Alkermes, Inc.
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(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
Pennsylvania 23-2472830
- ------------------------------- ----------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
64 Sidney Street, Cambridge, Massachusetts 02139-4234
- ------------------------------------------ ----------
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
Alkermes, Inc.
1999 Stock Option Plan
------------------------
(FULL TITLE OF THE PLAN)
Richard F. Pops
Chief Executive Officer
Alkermes, Inc.
64 Sidney Street
Cambridge, Massachusetts 02139-4234
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(NAME AND ADDRESS OF AGENT FOR SERVICE)
(617) 494-0171
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(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
with a copy to:
Morris Cheston, Jr., Esquire
Jennifer L. Miller, Esquire
Ballard Spahr Andrews & Ingersoll, LLP
1735 Market Street
Philadelphia, Pennsylvania 19103-7599
(215) 665-8500
CALCULATION OF REGISTRATION FEE
-------------------------------
- --------------------------------------------------------------------------------
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered(1) Share(2) Price(2) Fee
- --------------------------------------------------------------------------------
Common Stock,
par value $.01
per share 2,500,000 $34.5313 $86,328,250 $24,000
- --------------------------------------------------------------------------------
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(1) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement shall 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 or 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
October 18, 1999, $34.5313, as reported on the Nasdaq National Market
for securities of the same class as those to be offered.
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PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I
of Form S-8 will be given or sent to all employees who participate in the 1999
Stock Option Plan as specified by Rule 428.
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,
as amended (the "Exchange Act") by Alkermes, Inc. (the "Company") (File No.
0-19267) 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, 1999;
(b) Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999;
(c) Current Reports on Form 8-K dated February 1, 1999
(as amended by Form 8-K/A filed April 19, 1999 and
further amended by Form 8-K/A filed May 13, 1999)
(the supplemental consolidated financial statements
set forth in Item 7 were subsequently superseded by
the financial statements and supplementary data set
forth in Item 8 of the Registrant's Annual Report on
Form 10-K for the fiscal year ended March 31, 1999),
April 7, 1999 and April 15, 1999; and
(d) Item 1 of Registration Statement of the Company on
Form 8-A dated June 28, 1991, as amended by a Report
on Form 8-A/A dated January 17, 1997.
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.
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ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Morris Cheston, Jr., Esquire, Secretary of the Company, and
Martha J. Hays, Esquire, Secretary of Alkermes Investments, Inc., a wholly-owned
subsidiary of Alkermes, Inc., are 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
$10,000,000 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:
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
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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.
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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.
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 Preferred Stock Certificate of Alkermes, Inc.
(Incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3, as amended (File No.
333-50157).)
4.3 Specimen of 1999 Preferred Stock Certificate of Alkermes, Inc.
(Incorporated by reference to Exhibit 4.3 to the Registrant's
Report on Form 10-K for the fiscal year ended March 31, 1999.)
4.4 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.)
4.5 Form of 1995 Warrant to purchase 300 shares of the
Registrant's Common Stock. (Incorporated by reference to
Exhibit 4.3 to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 1992.)
4.6 Form of Global Warrant Certificate for 1994 Class A Warrants.
(Incorporated by reference to Exhibit 4.6 to the Registrant's
Report on Form 10-Q for the quarter ended December 31, 1994.)
4.7 Form of Global Warrant Certificate for 1994 Class B Warrants.
(Incorporated by reference to Exhibit 4.7 to the Registrant's
Report on Form 10-Q for the quarter ended December 31, 1994.)
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4.8 Form of Global Warrant Certificate for 1994 Affiliate
Warrants. (Incorporated by referenced to Exhibit 4.8 to the
Registrant's Report on Form 10-Q for the quarter ended
December 31, 1994.)
4.9 Form of Global Warrant Certificate for 1994 Incentive
Warrants. (Incorporated by reference to Exhibit 4.9 to the
Registrant's Report on Form 10-Q for the quarter ended
December 31, 1994.)
4.10 Warrant Agreement, dated as of November 18, 1994, by and
between the Registrant and The First National Bank of Boston.
(Incorporated by reference to Exhibit 4.10 to the Registrant's
Report on Form 10-Q for the quarter ended December 31, 1994.)
4.11 Indenture, dated as of March 1, 1998, between Alkermes, Inc.
and State Street Bank and Trust Company, as Trustee.
(Incorporated by reference to Exhibit 4.7 to the Registrant's
Registration Statement on Form S-3, as amended (File No.
333-50157).)
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 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included in signature page).
99 Alkermes, Inc. 1999 Stock Option Plan. (Incorporated by
reference to Exhibit 10.7 to the Registrant's Report on Form
10-K for the fiscal year ended March 31, 1999.)
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,
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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 (a)(1)(i) and (a)(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 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
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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
October 22, 1999.
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
/s/ Michael A. Wall Director and October 22, 1999
- ---------------------------- Chairman of the
Michael A. Wall Board
/s/ Richard F. Pops Director and Chief October 22, 1999
- ----------------------------- Executive Officer
Richard F. Pops (Principal
Executive Officer)
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/s/ Robert A. Breyer Director, President October 22, 1999
- ----------------------------- and Chief Operating
Robert A. Breyer Officer
/s/ James M. Frates Vice President, Chief October 22, 1999
- ----------------------------- Financial Officer and
James M. Frates Treasurer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ Floyd E. Bloom Director October 22, 1999
- -----------------------------
Floyd E. Bloom
/s/ John K. Clarke Director October 22, 1999
- -----------------------------
John K. Clarke
/s/ Alexander Rich Director October 22, 1999
- -----------------------------
Alexander Rich
/s/ Paul Schimmel Director October 22, 1999
- -----------------------------
Paul Schimmel
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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 Preferred Stock Certificate of Alkermes, Inc.
(Incorporated by reference to Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3, as amended (File No. 333-50157).)
4.3 Specimen of 1999 Preferred Stock Certificate of Alkermes, Inc.
(Incorporated by reference to Exhibit 4.3 to the Registrant's Report
on Form 10-K for the fiscal year ended March 31, 1999.)
4.4 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.)
4.5 Form of 1995 Warrant to purchase 300 shares of the Registrant's
Common Stock. (Incorporated by reference to Exhibit 4.3 to the
Registrant's Report on Form 10-K for the fiscal year ended March 31,
1992.)
4.6 Form of Global Warrant Certificate for 1994 Class A Warrants.
(Incorporated by reference to Exhibit 4.6 to the Registrant's Report
on Form 10-Q for the quarter ended December 31, 1994.)
4.7 Form of Global Warrant Certificate for 1994 Class B Warrants.
(Incorporated by reference to Exhibit 4.7 to the Registrant's Report
on Form 10-Q for the quarter ended December 31, 1994.)
4.8 Form of Global Warrant Certificate for 1994 Affiliate Warrants.
(Incorporated by referenced to Exhibit 4.8 to the Registrant's Report
on Form 10-Q for the quarter ended December 31, 1994.)
4.9 Form of Global Warrant Certificate for 1994 Incentive Warrants.
(Incorporated by reference to Exhibit 4.9 to the Registrant's Report
on Form 10-Q for the quarter ended December 31, 1994.)
4.10 Warrant Agreement, dated as of November 18, 1994, by and between the
Registrant and The First National Bank of Boston. (Incorporated by
reference to
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Exhibit 4.10 to the Registrant's Report on Form 10-Q for the quarter
ended December 31, 1994.)
4.11 Indenture, dated as of March 1, 1998, between Alkermes, Inc. and
State Street Bank and Trust Company, as Trustee. (Incorporated by
reference to Exhibit 4.7 to the Registrant's Registration Statement
on Form S-3, as amended (File No. 333-50157).)
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 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included in signature page).
99 Alkermes, Inc. 1999 Stock Option Plan. (Incorporated by reference to
Exhibit 10.7 to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1999.)
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Exhibit 5
[LETTERHEAD OF BALLARD SPAHR ANDREWS & INGERSOLL, LLP]
October 21, 1999
Alkermes, Inc.
64 Sidney Street
Cambridge, MA 02139-4234
Re: Common Stock to be Issued Pursuant to
Alkermes, Inc. 1999 Stock Option Plan
-------------------------------------
Gentlemen:
We have acted as counsel to Alkermes, Inc. (the "Company") in
connection with the Company's 1999 Stock Option Plan (the "Plan"), and the
registration and issuance of up to 2,500,000 shares of the Company's common
stock, par value $0.01 per share (the "Shares"), pursuant to the terms thereof.
The opinion expressed below is based on the assumption that a
Registration Statement on Form S-8 (the "Registration Statement") with respect
to the Shares will have been filed by the Company with the Securities and
Exchange Commission and will have become effective before any of the Shares are
issued and that persons acquiring the Shares will do so strictly in accordance
with the terms of the Plan and will receive a prospectus containing all the
information required by Part I of Form S-8 before acquiring such Shares.
Based on the foregoing, we are of the opinion that the Shares,
when issued and sold by the Company to the purchasers of the Shares in
accordance with the terms and conditions of the Plan, will be legally issued,
fully paid and non-assessable.
We consent to the filing of this opinion as Exhibit 5 to the
Registration Statement.
Very truly yours,
/s/ Ballard Spahr Andrews & Ingersoll, LLP
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Exhibit 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Alkermes, Inc. on Form S-8 of our report dated May 21, 1999, appearing in the
Annual Report on Form 10-K of Alkermes, Inc. for the year ended March 31, 1999
and our report dated April 13, 1999, on the historical financial statements of
Advanced Inhalation Research, Inc. as of March 31, 1998 and for the period from
May 7, 1997 (date of incorporation) through March 31, 1998, appearing in
Amendment Nos. 1 and 2 to the Current Report on Form 8-K/A dated February 1,
1999 of Alkermes, Inc. The supplemental consolidated financial statements set
forth in Item 7 in Amendment No. 2 to the Current Report on Form 8-K/A dated
February 1, 1999 of Alkermes, Inc. were subsequently superseded by the
consolidated financial statements set forth in Item 8 in the Annual Report on
Form 10-K of Alkermes, Inc. for the year ended March 31, 1999.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
October 21, 1999
