<PAGE>
As filed with the Securities and Exchange Commission on May 21, 1999
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
(State of Incorporation) (I.R.S. Employer Identification Number)
236 WEST CUMMINGS PARK
WOBURN, MASSACHUSETTS 01801
(Address, including zip code, of Principal Executive Offices)
ANIKA THERAPEUTICS, INC. EMPLOYEE SAVINGS AND RETIREMENT PLAN
(Full Title of the Plan)
-------------------------
J. MELVILLE ENGLE
CHAIRMAN, 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
-------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Registered (2) Offering Price Per Share Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value 200,000 $5.25 (3) $1,050,000 $291.90
$.01 per share
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</TABLE>
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
as amended (the "Securities Act") this registration statement also
covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plan described herein.
(2) Plus such additional number of shares as may be required pursuant to
the Registrant's Employee Savings and Retirement Plan (Plan Number 001)
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 sales prices
of the common stock of Anika Therapeutics, Inc., par value $.01 per
share, as reported on the Nasdaq National Market on May 14, 1999,
pursuant to Rule 457(c) and (h) under 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") and the Anika
Therapeutics, Inc. Employee Savings and Retirement Plan (the "Plan") hereby
incorporate 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-K for the fiscal
year ended December 31, 1998; The Plan's Annual Report on Form
11-K for the period ended December 31, 1998
(b) All other reports filed by the Registrant or the Plan pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") after December 31,
1998; 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 or the Plan 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. A partner in the firm of
Goodwin, Procter & Hoar LLP, beneficially owns 19,490 shares of Common Stock.
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
2
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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.
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:
<TABLE>
<CAPTION>
<S> <C> <C>
+ 4.1 Amended and Restated Articles of Organization of Anika
Therapeutics, Inc. ("Anika") as amended.
+ 4.2 Certificate of Vote of Directors Establishing a Series of
Convertible Preferred Stock.
++ 4.3 Amendment to Amended and Restated Articles of Organization of
Anika, as amended.
+++ 4.4 Certificate of Vote of Directors Establishing a Series of a
Class of Stock.
++++ 4.5 Articles of Amendment
+++ 4.6 Shareholder Rights Plan Agreement dated as of April 6, 1998
between Anika and Firstar Trust Company.
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.
23.3 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on the signature page of this
registration statement).
+ Incorporated by reference to Exhibits to the Registration
Statement on Form 10 (File No. 0-21326) filed by Anika on
March 5, 1993.
++ Incorporated by reference to Exhibits to Anika's Form 10-QSB
for the quarterly period ended November 30, 1996 as filed on
January 14, 1997.
+++ Incorporated by reference to Exhibits to Anika's Form 8-K as
filed on April 7, 1997
++++ Incorporated by reference to Exhibits to Anika's Form 10-QSB for
the quarterly period ended June 30, 1998, as filed on August 14,
1998.
</TABLE>
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;
3
<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) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, 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 intial
bona fide offering thereof.
(c) 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.
(d) The undersigned Registrant hereby undertakes that it will
submit or has submitted the Plan and any amendment thereto to the Internal
Revenue Service ("IRS") in a timely manner and has made or will make all
changes required by the IRS in order to qualify the Plan.
4
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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 18th day of May 1999.
Anika Therapeutics, Inc.
By: /s/ J. Melville Engle
-----------------------------
J. Melville Engle,
Chairman, Chief Executive
Officer and President
(Principal Executive Officer)
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.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
--------- -------- ----
<S> <C> <C>
/s/ J. Melville Engle Chairman of the Board of Directors and May 18, 1999
--------------------------- President (Principal Executive Officer
J. Melville Engle
/s/ Joseph L. Bower Director May 18, 1999
---------------------------
Joseph L. Bower
/s/ Eugene A. Davidson Director May 18, 1999
---------------------------
Eugene A. Davidson
/s/ Jonathan D. Donaldson Director May 18, 1999
---------------------------
Jonathan D. Donaldson
/s/ Samuel Mckay Director May 18, 1999
---------------------------
Samuel McKay
/s/ Harvey Sadow Director May 18, 1999
---------------------------
Harvey Sadow
/s/ Steven E. Wheeler Director May 18, 1999
---------------------------
Steven E. Wheeler
/s/ Sean F. Moran Vice President of Finance and Treasurer May 18, 1999
--------------------------- (Principal Financial and Accounting Officer)
Sean F. Moran
</TABLE>
5
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Pursuant to the requirements of the Securities Act of 1933, as
amended the trustees (or other persons who administer the employee benefit
plan) have duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the city of Woburn,
Massachusetts on May 18, 1999.
ANIKA THERAPEUTICS, INC.
EMPLOYEE SAVINGS AND RETIREMENT PLAN
/s/ Sean F. Moran
------------------------------------
Trustee
6
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ----
<S> <C> <C>
+ 4.1 Amended and Restated Articles of Organization of Anika
Therapeutics, Inc. ("Anika") as amended.
+ 4.2 Certficate of Vote of Directors Establishing a Series of
Convertible Preferred Stock.
++ 4.3 Amendment to Amended and Restated Articles of Organization of
Anika, as amended.
+++ 4.4 Certificate of Vote of Directors Establishing a Series of a
Class of Stock.
++++ 4.5 Articles of Amendment
+++ 4.6 Shareholder Rights Plan Agreement dated as of April 6, 1998
between Anika and Firstar Trust Company.
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.
23.3 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page of this
registration statement).
+ Incorporated by reference to Exhibits to the Registration
Statement on Form 10 (File No. 0-21326) filed by Anika on
March 5, 1993.
++ Incorporated by reference to Exhibits to Anika's Form 10-QSB
for the quarterly period ended November 30, 1996 as filed on
January 14, 1997.
+++ Incorporated by reference to Exhibits to Anika's Form 8-K as
filed on April 7, 1997.
++++ Incorporated by reference to Exhibits to Anika's Form 10-QSB for
the quarterly period ended June 30, 1998, as filed on August 14,
1998.
</TABLE>
7
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EXHIBIT 5.1
May 18, 1999
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 200,000 shares of
common stock, par value $.01 per share, of the Company (the "Shares"),
issuable under the Company's Employee Savings and Retirement Plan (the "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,
/S/ GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to incorporation by reference in the registration statement
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.
/s / KPMG PEAT MARWICK LLP
Boston, Massachusetts
May 18, 1999
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 16,
1999 included in Anika Therapeutics, Inc. Form 10-K for the year ended
December 31, 1998 and to all references to our Firm included in this
registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts,
May 17, 1999
