S-8
As filed with the Securities and Exchange Commission on February 24, 2009
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
THE MEDICINES COMPANY
(Exact name of Registrant as specified in its charter)
|
|
|
Delaware
|
|
04-3324394 |
(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.) |
8 Sylvan Way
Parsippany, New Jersey 07054
(Address of Principal Executive Offices including Zip Code)
2009 EQUITY INDUCEMENT PLAN
(Full title of the Plan)
Paul M. Antinori
Senior Vice President and General Counsel
The Medicines Company
8 Sylvan Way
Parsippany, New Jersey 07054
(973) 290-6000
(Name and address, including zip code, and telephone
number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
Large accelerated filer þ |
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company o |
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of |
|
|
Proposed Maximum |
|
|
Proposed Maximum |
|
|
|
|
|
Title of Securities to be |
|
|
Shares to be |
|
|
Offering Price Per |
|
|
Aggregate Offering |
|
|
Amount of |
|
|
Registered |
|
|
Registered (1) |
|
|
Share (2) |
|
|
Price (2) |
|
|
Registration Fee |
|
|
Common Stock, $0.001 par
value per share
|
|
|
|
1,500,000 |
|
|
|
$ |
12.89 |
|
|
|
$ |
19,335,000 |
|
|
|
$ |
759.87 |
|
|
|
|
|
|
(1) |
|
In accordance with Rule 416 under the Securities Act of 1933, as amended, or the Securities
Act, this registration statement shall be deemed to cover any additional shares of common stock
that may from time to time be offered or issued to prevent dilution resulting from any stock
dividend, stock split, or similar transactions. |
|
(2) |
|
Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c)
and Rule 457(h) of the Securities Act for the 1,500,000 shares registered hereunder (based on the
average of the high ($13.24) and low ($12.54) prices for our common stock reported by the Nasdaq
Global Select Market on February 20, 2009). |
TABLE OF CONTENTS
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The information required by Item 1 is included in documents sent or given to participants in
The Medicines Companys 2009 Equity Inducement Plan, or the 2009 Plan, pursuant to Rule 428(b)(1)
of the Securities Act.
Item 2. Registrant Information and Employee Plan Annual Information.
The written statement required by Item 2 is included in documents sent or given to
participants in the 2009 Plan, pursuant to Rule 428(b)(1) of the Securities Act.
1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the registrant with the Securities and Exchange Commission,
or the SEC, pursuant to the Securities Exchange Act of 1934, as amended, or the Exchange Act, are
incorporated by reference herein and in the Prospectus constituting a part of this Registration
Statement:
|
(a) |
|
the registrants annual report on Form 10-K for the fiscal year ended
December 31, 2007; |
|
|
(b) |
|
the registrants proxy statement for the registrants 2008 annual
meeting of stockholders filed with the Securities and Exchange Commission, or the
SEC, on April 29, 2008; |
|
|
(c) |
|
the registrants quarterly report on Form 10-Q for the three months
ended March 31, 2008; |
|
|
(d) |
|
the registrants current report on Form 8-K filed with the SEC on
February 13, 2008; |
|
|
(e) |
|
the registrants current report on Form 8-K filed with the SEC on
April 23, 2008; |
|
|
(f) |
|
the registrants current report on Form 8-K filed with the SEC on May
28, 2008; |
|
|
(g) |
|
the registrants current report on Form 8-K filed with the SEC on
June 3, 2008; |
|
|
(h) |
|
the registrants current report on Form 8-K filed with the SEC on
June 24, 2008; |
|
|
(i) |
|
the registrants current report on Form 8-K filed with the SEC on
July 23, 2008; |
|
|
(j) |
|
the registrants current report on Form 8-K filed with the SEC on
August 4, 2008; |
|
|
(k) |
|
the registrants current report on Form 8-K filed with the SEC on
August 6, 2008; |
|
|
(l) |
|
the registrants quarterly report on Form 10-Q for the three months
ended June 30, 2008; |
|
|
(m) |
|
the registrants current report on Form 8-K filed with the SEC on
October 2, 2008; |
|
|
(n) |
|
the registrants current report on Form 8-K filed with the SEC on
November 10, 2008; |
|
|
(o) |
|
the registrants quarterly report on Form 10-Q for the three months
ended September 30, 2008; |
|
|
(p) |
|
the registrants current report on Form 8-K filed with the SEC on
January 4, 2009; |
|
|
(q) |
|
the registrants current report on Form 8-K filed with the SEC on
January 30, 2009; |
|
|
(r) |
|
the registrants current report on Form 8-K filed with the SEC on
February 18, 2009; and |
|
(s) |
|
the description of the registrants common stock contained in our
registration statement on Form 8-A filed with the SEC on July 28, 2000, including
any amendment or report filed for the purpose of updating such description. |
In addition, all documents we file 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 filing of a
post-effective amendment that indicates that all securities offered hereby have been sold or that
deregisters all securities then remaining unsold, are incorporated by reference in this
registration statement and are a part hereof from the date of filing such documents. Any statement
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.
Article SEVENTH of our Third Amended and Restated Certificate of Incorporation, as amended to
date, or the Charter, provides that no director of our company shall be personally liable to us or
our stockholders for monetary damages for any breach of fiduciary duty as a director,
notwithstanding any provision of law imposing such liability, except to the extent that the General
Corporation Law of the State of Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty.
Article EIGHTH of our Charter provides that each of our directors and officers (a) shall be
indemnified by us against all expenses (including attorneys fees), judgments, fines and amounts
paid in settlement incurred in connection with any litigation or other legal proceeding (other than
an action by or in the right of us) threatened or brought against him by virtue of the fact that he
is, or has agreed to serve as, a director or officer of our company or is serving in the position
of director, officer, partner, employee or trustee of another corporation, partnership, joint
venture trust or other enterprise on our behalf, if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, our best interests, and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct was unlawful and
(b) shall be indemnified by us against all expenses (including attorneys fees) and amounts paid in
settlement incurred in connection with any action by or in the right of us brought against him by
virtue of the fact that he is, or has agreed to serve as, a director or officer of our company or
is serving in the position of director, officer, partner, employee or trustee of another
corporation, partnership, joint venture trust or other enterprise on our behalf, if he acted in
good faith and in a manner he reasonably believed to be in, or not opposed to, our best interests,
except that no indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to us, unless a court determines that, despite such
adjudication but in view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or officer has been
successful, on the merits or otherwise, including, without limitation, the dismissal of an action
without prejudice, he is required to be indemnified by us against all expenses (including
attorneys fees) incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced if it is
ultimately determined that he is not entitled to indemnification for such expenses.
Indemnification is required to be made unless we determine that the applicable standard of
conduct required for indemnification has not been met. In the event of a determination by us that
the director or officer did not meet the applicable standard of conduct required for
indemnification or if we fail to make an indemnification payment within 60 days after such payment
is claimed by such person, such person is permitted to petition the court to make an independent
determination as to whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give us notice of the action for which
indemnity is sought and we have the right to participate in such action or assume the defense
thereof.
Section 145 of the General Corporation Law of the State of Delaware provides that a
corporation has the power to indemnify a director, officer, employee, or agent of the corporation
and certain other persons serving at the request of the corporation in related capacities against
expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by the person in connection with any threatened, pending or completed action,
suit or proceeding to which he was or is a party or is threatened to be made a party by reason of
such position, if such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation, and, in any criminal proceeding, if such
person has no reasonable cause to believe his conduct was unlawful. In the case of actions brought
by or in the right of the corporation, however, no indemnification shall be made with respect to
any matter as to which such person shall have been adjudged to be liable to the corporation unless
and only to the extent that the adjudicating court determines that, despite the adjudication of
liability but in view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
We maintain a general liability insurance policy which covers certain liabilities of directors
and officers of our corporation arising out of claims based on acts or omissions in their
capacities as directors or officers.
At present, there is no pending litigation or proceeding involving any director, officer,
employee or agent as to which indemnification will be required or permitted under the Charter. We
are not aware of any threatened litigation or proceeding that may result in a claim for such
indemnification.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following is a list of exhibits filed as part of this registration statement, which are
incorporated herein:
|
|
|
Exhibit |
|
|
Number |
|
Document |
|
|
|
5.1
|
|
Opinion of Paul M. Antinori, Esq., Senior Vice President and
General Counsel |
|
|
|
10.1
|
|
The Medicines Company 2009 Equity Inducement Plan |
|
|
|
23.1
|
|
Consent of Ernst & Young LLP |
|
|
|
23.2
|
|
Consent of Paul M. Antinori, Esq., Senior Vice President and
General Counsel (contained in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included in the signature page of this
registration statement) |
Item 9. Undertakings.
(a) 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 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;
(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 (a)(1)(i) and (a)(1)(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
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the registrants annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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) 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
Commission such indemnification is against public policy as expressed in the Securities Act of 1933
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 of 1933 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Parsippany, State of New Jersey, on this 24th day of
February, 2009.
|
|
|
|
|
|
THE MEDICINES COMPANY
|
|
|
By: |
/s/ Clive A. Meanwell
|
|
|
|
Clive A. Meanwell |
|
|
|
Chairman and Chief Executive Officer |
|
|
We, the undersigned officers and directors of The Medicines Company, hereby severally
constitute and appoint Clive A. Meanwell, Glenn P. Sblendorio, John P. Kelley, and each of them
singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for
us and in our names in the capacities indicated below, the registration statement on Form S-8 filed
herewith and any and all subsequent amendments to said registration statement, and generally to do
all such things in our names and on our behalf in our capacities as officers and directors to
enable The Medicines Company to comply with the provisions of the Securities Act, and all
requirements of the Securities and Exchange Commission, hereby ratifying and confirming out
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, this registration statement has been
signed below by the following persons in the capacities and on the date indicated.
|
|
|
|
|
Signature |
|
Title(s) |
|
Date |
|
|
|
|
|
/s/ Clive A. Meanwell
Clive A. Meanwell
|
|
Chief Executive
Officer and
Chairman of the
Board of Directors
(Principal
Executive Officer)
|
|
February 24, 2009 |
|
|
|
|
|
/s/ Glenn P. Sblendorio
Glenn P. Sblendorio
|
|
Executive Vice
President, Chief
Financial Officer
and Treasurer
(Principal
Financial and
Accounting Officer)
|
|
February 24, 2009 |
|
|
|
|
|
|
|
President, Chief
Operating Officer
and Director
|
|
February 24, 2009 |
John P. Kelley |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
William W. Crouse |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Robert J. Hugin |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
T. Scott Johnson |
|
|
|
|
|
|
|
|
|
Signature |
|
Title(s) |
|
Date |
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Armin M. Kessler |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Robert G. Savage |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Hiroaki Shigeta |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Melvin K. Spigelman |
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February 24, 2009 |
Elizabeth H.S. Wyatt |
|
|
|
|
Index to Exhibits
|
|
|
Exhibit |
|
|
Number |
|
Document |
|
|
|
5.1
|
|
Opinion of Paul M. Antinori, Esq., Senior Vice President and
General Counsel |
|
|
|
10.1
|
|
The Medicines Company 2009 Equity Inducement Plan |
|
|
|
23.1
|
|
Consent of Ernst & Young LLP |
|
|
|
23.2
|
|
Consent of Paul M. Antinori, Esq., Senior Vice President and
General Counsel (contained in Exhibit 5.1) |
|
|
|
24.1
|
|
Power of Attorney (included in the signature page of this
registration statement) |