As filed with the Securities and Exchange Commission on April 3, 2001
REGISTRATION STATEMENT NO. 333-
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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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ANIKA THERAPEUTICS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MASSACHUSETTS 04-3145961
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NO.)
236 WEST CUMMINGS PARK
WOBURN, MA 01801
(781) 932-6616
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ANIKA THERAPEUTICS, INC. 1993 STOCK OPTION PLAN, AS AMENDED
(FULL TITLE OF THE PLAN)
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J. MELVILLE ENGLE
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ANIKA THERAPEUTICS, INC.
236 WEST CUMMINGS PARK
WOBURN, MA 01801
(781) 932-6616
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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WITH A COPY TO:
H. DAVID HENKEN, P.C.
GOODWIN PROCTER LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered(1) Offering Price Per Share Aggregate Offering Price Registration Fee
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Common Stock, par value $.01 399,946 $0.9219(2) $368,710.22 $ 92.18
per share (3) 24,554 $ 1.75 $ 42,969.50 $ 10.74
10,000 $1.6880 $ 16,680.00 $ 4.17
4,000 $ 1.50 $ 6,000.00 $ 1.50
30,000 $1.3125 $ 39,372.00 $ 9.84
16,500 $1.1880 $ 19,470.00 $ 4.87
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485,000 $493,201.72 $123.30
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(1) This Registration Statement also relates to such indeterminate number of
additional shares of Anika Therapeutics, Inc. Common Stock 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,
forfeiture of stock under the plan or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act") solely for the purposes of
determining the amount of the registration fee. The registration fee is
based upon the average of the high and low prices for the Registrant's
Common Stock, par value $.01 per share, as reported on the Nasdaq National
Market on March 29, 2001.
(3) This Registration Statement also relates to the rights to purchase shares
of Series B Junior Participating Cumulative Preferred Stock of the
Registrant which are attached to all shares of Common Stock issued,
pursuant to the terms of the Registrant's Shareholder Rights Agreement
dated as of April 6, 1998. Until the occurrence of certain prescribed
events, the rights are not exercisable, are evidenced by the certificates
for the Common Stock and will be transferred with and only with such Common
Stock. Because no separate consideration is paid for the rights, the
registration fee therefore is included in the fee for the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
We hereby incorporate by reference the following documents which we have
previously filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, (the "Exchange Act"):
(a) our Annual Report on Form 10-K for the year ended December 31, 2000
(File No. 001-14027); and
(b) the description of our Common Stock contained in the Registration
Statement on Form 10 (File No. 000-21326), filed with the Securities and
Exchange Commission pursuant to Section 12 of the Exchange Act on March 5, 1993
and updated by our Registration Statement on Form SB-2 (File No. 333-38993), as
amended, filed on October 29, 1997.
In addition, all documents we subsequently file with the Securities
and Exchange Commission 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. Any statement contained in
a document incorporated by reference herein shall be deemed to be modified or
superseded for purposes hereof to the extent that a statement contained
herein or in any subsequently filed document which also is incorporated by
reference herein modifies or supersedes such statement. Any 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.
The legality of the shares to be offered hereby will be passed upon
for Anika Therapeutics, Inc. by Goodwin Procter LLP, Boston, Massachusetts. A
partner in the firm of Goodwin Procter LLP beneficially owns approximately
25,000 shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Anika Therapeutics, Inc. 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
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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 our 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 company shall be personally liable to the company or our
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 we 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
company, or in any capacity with respect to any employee benefit plan of the
company (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 company (or participants or beneficiaries of any
employee benefit plan of the company). We 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 company.
Article 6B permits the payment by the company of expenses incurred in
defending any action, suit, proceeding or investigation in advance of its
final disposition, if we do 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 company.
Such determination shall be made in each instance by (a) a majority vote of a
quorum of the directors of the company, (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 company) or (d) a court of competent jurisdiction.
We have directors and officers liability insurance for the benefit of
our directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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Item 8. EXHIBITS.
The following is a complete list of exhibits filed or incorporated by
reference as part of this Registration Statement.
EXHIBITS
4.1 Amended and Restated Articles of Organization of Anika
Therapeutics, Inc. ("Anika"), as amended (incorporated by
reference to the relevant exhibit to the Anika Registration
Statement on Form 10 (File No. 000-21326), filed with the
Securities and Exchange Commission on March 5, 1993).
4.2 Amendment to Amended and Restated Articles of Organization of
Anika, as amended (incorporated by reference to the relevant
exhibit to Anika's Form 10-QSB for the quarterly period ended
November 30, 1996 (File No. 000-21326), filed with the Securities
and Exchange Commission on January 14, 1997).
4.3 Amendment to Amended and Restated Articles of Organization of
Anika, as amended (incorporated by reference to the relevant
exhibit to Anika's Form 10-QSB for the quarterly period ended
June 30, 1998 (File No. 001-14027), filed with the Securities and
Exchange Commission on August 14, 1998).
4.4 Amended and Restated By-laws of Anika (incorporated by reference
to the relevant exhibit to Anika's Form 10-QSB for the quarterly
period ended November 30, 1996 (File No. 000-21326), filed with
the Securities and Exchange Commission on January 14, 1997).
4.5 Shareholder Rights Plan Agreement dated as of April 6, 1998
(incorporated by reference to the relevant exhibit to Anika's
Current Report on Form 8-A12B (File No. 000-21326), filed with
the Securities and Exchange Commission on April 7, 1998).
4.6 Anika's 1993 Stock Option Plan, as amended (incorporated
herein by reference to the Company's proxy statement (File No.
001-14027), filed with the Securities and Exchange Commission
on April 28, 2000).
*5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney (included on signature page(s) to this
Registration Statement).
* Filed herewith.
Item 9. UNDERTAKINGS.
(a) Anika Therapeutics, Inc. ("Anika") 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;
(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; 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 not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
periodic reports filed by Anika 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, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities
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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) Anika hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of Anika'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 may be permitted to directors, officers and
controlling persons of Anika pursuant to the foregoing
provisions, or otherwise, Anika 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 Anika of expenses incurred or paid by a
director, officer or controlling person of Anika 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, Anika 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, Anika Therapeutics,
Inc. 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, the Commonwealth of Massachusetts on this 3rd
day of April, 2001.
Anika Therapeutics, Inc.
By: /s/ J. MELVILLE ENGLE
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J. Melville Engle
Chairman, Chief Executive Officer and President
and Director
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints each of J. Melville Engle and Douglas
R. Potter 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 by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ J. MELVILLE ENGLE Chairman, Chief Executive Officer and April 3, 2001
- -------------------------------------- President (Principal Executive Officer) and
J. Melville Engle Director
/s/ DOUGLAS R. POTTER Chief Financial Officer, Treasurer and Clerk April 3, 2001
- -------------------------------------- (Principal Financial and Accounting Officer)
Douglas R. Potter
/s/ JOSEPH L. BOWER Director April 3, 2001
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Joseph L. Bower
/s/ EUGENE A. DAVIDSON Director April 3, 2001
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Eugene A. Davidson
/s/ SAMUEL F. MCKAY Director April 3, 2001
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Samuel F. McKay
/s/ HARVEY S. SADOW Director April 3, 2001
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Harvey S. Sadow
/s/ STEVEN E. WHEELER Director April 3, 2001
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Steven E. Wheeler
S-1
EXHIBIT INDEX
EXHIBITS
4.1 Amended and Restated Articles of Organization of Anika
Therapeutics, Inc. ("Anika"), as amended (incorporated by
reference to the relevant exhibit to the Anika Registration
Statement on Form 10 (File No. 000-21326), filed with the
Securities and Exchange Commission on March 5, 1993).
4.2 Amendment to Amended and Restated Articles of Organization of
Anika, as amended (incorporated by reference to the relevant
exhibit to Anika's Form 10-QSB for the quarterly period ended
November 30, 1996 (File No. 000-21326), filed with the Securities
and Exchange Commission on January 14, 1997).
4.3 Amendment to Amended and Restated Articles of Organization of
Anika, as amended (incorporated by reference to the relevant
exhibit to Anika's Form 10-QSB for the quarterly period ended
June 30, 1998 (File No. 001-14027), filed with the Securities and
Exchange Commission on August 14, 1998).
4.4 Amended and Restated By-laws of Anika (incorporated by reference
to the relevant exhibit to Anika's Form 10-QSB for the quarterly
period ended November 30, 1996 (File No. 000-21326), filed with
the Securities and Exchange Commission on January 14, 1997).
4.5 Shareholder Rights Plan Agreement dated as of April 6, 1998
(incorporated by reference to the relevant exhibit to Anika's
Current Report on Form 8-A12B (File No. 000-21326), filed with
the Securities and Exchange Commission on April 7, 1998).
4.6 Anika's 1993 Stock Option Plan, as amended, incorporated herein
by reference to the Company's proxy statement (File no.
001-14027), filed with the Securities and Exchange Commission on
April 28, 2000.
*5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
*23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on signature page(s) to this
Registration Statement).
* Filed herewith.