As filed with the Securities and Exchange Commission on November 5, 1998
Registration Statement 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
_________________________
Anika Therapeutics, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-3145961
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(State of Incorporation) (I.R.S. Employer Identification Number)
236 West Cummings Park
Woburn, Massachusetts 01801
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(Address, including zip code, of Principal Executive Offices)
Anika Therapeutics, Inc. 1993 Stock Option Plan
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(Full Title of the Plan)
J. MELVILLE ENGLE
President and Chief Executive Officer
Anika Therapeutics, Inc.
236 West Cummings Park
Woburn, Massachusetts 01801
(781) 932-6616
(Name, Address, and Telephone Number, Including Area Code, of Agent
For Service)
____________________________
With copies to:
H. DAVID HENKEN, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Amount
Securities Amount Offering Aggregate of
to be to be Price Per Offering Registration
Registered Registered (1) Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock,
par value $.01
per share 1,000,000 $5.438(2) $5,438,000 $1,511.76
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(1) Plus such additional number of shares as may be required pursuant to the
Registrant's 1993 Stock Option Plan in the event of a stock dividend, reverse
stock split, split-up, recapitalization or other similar event.
(2) This estimate is based on the average of the high and low sales prices of
the common stock of Anika Therapeutics, Inc., par value $.01 per share, as
reported on the Nasdaq National Market on October 30, 1998, pursuant to
Rule 457(c) and (h) under the Securities Act of 1933, as amended
(the "Securities Act"), solely for purposes of determining the registration
fee.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Anika Therapeutics, Inc. (the "Registrant") 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 Registrant's Annual Report on Form 10-KSB for the fiscal
year ended December 31, 1997;
(b) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") after December 31, 1997; and
(c) The description of the Registrant's common stock contained in
the Registrant's Registration Statement on Form 10, filed on
March 5, 1993 and updated by the Registrant's Registration
Statement on Form SB-2, as amended, filed on October 29, 1997.
In addition, all documents subsequently filed with the Commission by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The legality of the Common Stock offered hereby will be passed upon for the
Registrant by Goodwin, Procter & Hoar LLP. As of the date of this
Registration Statement, a total of 19,490 shares of Common Stock were
beneficially owned by partner of Goodwin, Procter & Hoar LLP.
Item 6. Indemnification of Directors and Officers.
The Company is a Massachusetts corporation. Chapter 156B, Section 13 of the
Massachusetts Business Corporation Law (the "MBCL"), enables a corporation
in its original articles of organization or an amendment thereto to eliminate
or limit the personal liability of a director for monetary damages for
violations of the director's fiduciary duty, except (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Sections 61 and
62 of the MBCL (providing for liability of directors for authorizing illegal
distributions and for making loans to directors, officers and certain
shareholders), or (iv) for any transaction from which a director derived an
improper personal benefit.
Chapter 156B, Section 67 of the MBCL, provides that a corporation may
indemnify directors, officers, employees and other agents and persons who
serve at its request as directors, officers, employees or other agents of
another organization or who serve at its request in any capacity with
respect to any employee benefit plan, to the extent specified or authorized by
the articles of organization, a by-law adopted by the stockholders or a vote
adopted by the holders of a majority of the shares of stock entitled to vote
on the election of directors. Such indemnification may include payment by the
corporation of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under
Section 67 which undertaking may be accepted with reference to the financial
ability of such person to make repayment. Any such indemnification may be
provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization
or no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to
any matter as to which he shall have been adjudicated in any proceeding not
to have acted in good faith in the reasonable belief that his action was in
the best interest of the corporation or to the extent that such matter relates
to service with respect to any employee benefit plan, in the best interests
of the participants or beneficiaries of such employee benefit plan.
Article 6A of the Registrant's Restated Articles of Organization, as amended
(the "Articles of Organization"), provides that except to the extent that
Chapter 156B of the Massachusetts General Laws prohibits the elimination or
limitation of liability of directors for breaches of fiduciary duty, no
director of the Registrant shall be personally liable to the Registrant or
its stockholders for monetary damages for any breach of fiduciary duty as a
director, notwithstanding any provision of law imposing such liability.
<PAGE>
Article 6B of the Articles of Organization, provides that the Registrant shall
indemnify each person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that he is or was, or has agreed to become, a director or officer of
the Registrant, or in any capacity with respect to any employee benefit plan of
the Registrant (an "Indemnitee") against amounts paid and expenses incurred
in connection with an action, suit or proceeding and any appeal therefrom, or
settlement thereof, unless the Indemnitee shall be finally adjudicated not
to have acted in good faith in the reasonable belief that his action
was in the best interest of the Registrant (or participants or beneficiaries
of any employee benefit plan of the Registrant). The Registrant shall not
indemnify an Indemnitee seeking indemnification in connection with a proceeding
initiated by the Indemnitee unless the initiation thereof was approved by
the Board of Directors of the Registrant.
Article 6B permits the payment by the Registrant of expenses incurred in
defending any action, suit, proceeding or investigation in advance of its
final disposition, if the Registrant does not assume the defense of Indemnitee,
subject to receipt of an undertaking by the Indemnitee to repay such payment
if it is ultimately determined that such Indemnitee is not entitled
to indemnification under the Articles of Organization.
Article 6B further permits that no indemnification or advancement of expenses
may be made if such Indemnitee did not act in good faith in the reasonable
belief that his action was in the best interest of the Registrant. Such
determination shall be made in each instance by (a) a majority vote of a
quorum of the directors of the Registrant, (b) a majority vote of a quorum
of the outstanding shares of stock of all classes entitled to vote for
directors, voting as a single class, which quorum shall consist of
stockholders who are not at that time parties to the action, suit or
proceeding in question, (c) independent legal counsel (who may be regular
legal counsel to the Registrant), or (d) a court of competent jurisdiction.
The Registrant has directors and officers liability insurance for the
benefit of its directors and officers.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement:
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5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in their opinion
filed as Exhibit 5.1 hereto).
23.2 Consent of KPMG Peat Marwick LLP.
24.1 Power of Attorney (included on the signature page of this
registration statement).
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Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which the Registrant offers or sells
securities, 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 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 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 "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;
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, treat each such post-effective amendment as a new
registration statement of the securities offered, and the offering
of such securities at that time shall be deemed to be the initial
bona fide; and
(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) Insofar as indemnification for liabilities arising under the Securities
Act 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 Securities
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
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Woburn, Massachusetts on
this 4th day of November 1998.
Anika Therapeutics, Inc.
By:/s/ J. Melville Engle
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J. Melville Engle, President (Principal Executive Officer)
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Anika Therapeutics, Inc. hereby severally constitute
J. Melville Engle and Sean F. Moran, and each of them individually, our
true and lawful attorneys with full power to them, to sign for us and in
our names in the capacities indicated below, the Registration Statement filed
herewith and any and all amendments to said Registration Statement, and
generally do all such things in our names and in our capacities as
officers and directors to enable Anika Therapeutics, Inc. to comply with
the provisions of the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and conforming our
signatures as they may be signed by our said attorneys, or any of them, to
said Registration Statement and any and all amendments thereto.
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.
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SIGNATURE CAPACITY DATE
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/s/ David A. Swann Chairman of the Board November 5, 1998
- -------------------- of Directors
David A. Swann
/s/ Joseph L. Bower Director November 5, 1998
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Joseph L. Bower
/s/ Eugene A. Davidson Director November 5, 1998
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Eugene A. Davidson
/s/ Jonathan D. Donaldson Director November 5, 1998
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Jonathan D. Donaldson
/s/ Samuel McKay Director November 5, 1998
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Samuel McKay
/s/ Harvey Sadow Director November 5, 1998
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Harvey Sadow
/s/ Steven E. Wheeler Director November 5, 1998
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Steven E. Wheeler
/s/ J. Melville Engle President (Principle November 5, 1998
- --------------------- Executive Officer) and
J. Melville Engle Director
/s/ Sean F. Moran Vice President of Finance November 5, 1998
- ----------------- and Treasurer (Principal
Sean F. Moran Financial and Accounting
Officer)
</TABLE>
<PAGE>
EXHIBIT INDEX
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Exhibit No. Description Page
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5.1 Opinion of Goodwin, Procter & Hoar LLP as to the
legality of the securities being registered. 4
23.1 Consent of Goodwin, Procter & Hoar LLP (included
in their opinion filed as Exhibit 5.1 hereto). 4
23.2 Consent of KPMG Peat Marwick LLP. 5
24.1 Power of Attorney (included on the signature
page of this registration statement). 3
27.1 Financial Data Schedule
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<PAGE>
EXHIBIT 5.1
November 5, 1998
Anika Therapeutics, Inc.
236 West Cummings Park
Woburn, MA 01801
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Anika Therapeutics,
Inc. (the "Company") in connection with the preparation and filing with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, of a Registration Statement on Form S-8 (the "Registration
Statement") relating to the issuance of shares of 1,000,000 shares of
common stock, par value $.01 per share, of the Company (the "Shares"),
issuable under the Company's 1993 Stock Option Plan.
As counsel for the Company, we have examined the Company's Amended and
Restated Articles of Organization and 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 have also relied upon representations from the Company as to certain
factual matters relevant to this opinion.
Based on the foregoing, we are of the opinion that the Shares are duly
authorized by the Company, and such Shares when issued and paid for in
accordance with the terms of the Plan will be legally issued, fully paid
and non-assessable.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the registration statement
(No. 333-xxxx) on Form S-8 of Anika Therapeutics, Inc. of our report dated
February 18, 1998, relating to the balance sheets of Anika Therapeutics, Inc.
as of December 31, 1997 and 1996, and the related statements of operations,
stockholders' equity, and cash flows for the year ended December 31, 1997,
the four month transitional year ended December 31, 1996 and the year ended
August 31, 1996, which report appears in the December 31, 1997 annual report
on Form 10-KSB of Anika Therapeutics, Inc.
KPMG PEAT MARWICK LLP
Boston, Massachusetts
November 4, 1998
