sv8
As filed with the Securities and Exchange Commission on June 30, 2010
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)
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Delaware
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04-3324394 |
(State or Other Jurisdiction of Incorporation
or Organization)
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(I.R.S. Employer
Identification No.) |
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8 Sylvan Way, Parsippany, New Jersey
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07054 |
(Address of Principal Executive Offices)
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(Zip Code) |
2010 EMPLOYEE STOCK PURCHASE 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
(Name and Address of Agent For Service)
(973) 290-6000
(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 12b2 of the Exchange Act.
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Large accelerated filer o
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Accelerated filer þ
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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Proposed |
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Proposed |
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Title of |
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Maximum |
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Maximum |
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Securities to be |
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Amount to be |
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Offering Price Per |
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Aggregate Offering |
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Amount of |
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Registered |
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Registered(1) |
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Share |
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Price |
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Registration Fee |
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Common Stock,
$0.001 par value
per share |
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1,000,000 shares |
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$7.95(2) |
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$7,950,000(2) |
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$567.00 |
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(1) |
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In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration
statement shall be deemed to cover any additional securities that may from time to time be
offered or issued to prevent dilution resulting from stock splits, stock dividends or similar
transactions. |
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(2) |
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c)
and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high
($8.06) and low ($7.84) prices of the Registrants Common Stock as reported on the Nasdaq
Global Select Market on June 23, 2010. |
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 2010 Employee Stock Purchase Plan covered by this registration statement (the Plan) pursuant
to Rule 428(b)(1) of the Securities Act of 1933, as amended (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 Plan pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Medicines Company is subject to the informational and reporting requirements of Sections
13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act), and
accordingly we file reports, proxy statements and other information with the Securities and
Exchange Commission (the Commission). The following documents, which are on file with the
Commission, are incorporated in this registration statement by reference:
(a) Our latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or
the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited
financial statements for our latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the document referred to in (a) above.
(c) The description of the securities contained in our registration statement on Form 8-A
filed under the Exchange Act, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed 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 by this registration statement 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 part hereof from the date of the filing of 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 the 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
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.
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Item 5. Interests of Named Experts and Counsel.
Paul M. Antinori, our senior vice president and general counsel, has opined as to
the legality of the securities being offered by this registration statement. As of June 28, 2010,
Mr. Antinori owned 24,303 shares of the Companys common stock and held options to purchase 262,143
shares of the Companys common stock, granted under the Companys equity incentive plans. Mr.
Antinori is eligible to participate in the Plan.
Item 6. Indemnification of Directors and Officers.
Article EIGHTH of our Third Amended and Restated Certificate of Incorporation, as
amended to date, or the 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 actually and reasonably 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 was, or has agreed to serve as, a director or officer of our
company or is or was serving, or has agreed to serve, at our request, as a director, officer,
partner, employee or trustee of, or in a similar capacity with, another corporation, partnership,
joint venture trust or other enterprise (including any employee benefit plan) 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, to the extent permitted by law, amounts paid in settlement actually and
reasonably incurred in connection with any action by or in the right of us to procure a judgment in
its favor brought against him by virtue of the fact that he is or was, or has agreed to serve as, a
director or officer of our company or is or was serving, or has agreed to serve, at our request, as
a director, officer, partner, employee or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture trust or other enterprise (including any employee benefit
plan) on our behalf, or by reason of any action alleged to have been taken or omitted in such
capacity, 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 claim,
issue or matter as to which such person shall have been adjudged to be liable to us, unless and
only to the extent the Court of Chancery of Delaware determines upon application that, despite the
adjudication of such liability but in view of all the circumstances of the case, he is fairly and
reasonably entitled to indemnification of such expenses (including attorneys fees) which the Court
of Chancery of Delaware shall deem proper. 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) actually and reasonably 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 written notice as soon as
practicable of the action for which indemnity is sought and we have the right to participate in
such action or assume the defense thereof.
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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 to procure a judgment in its favor, however, no
indemnification shall be made with respect to any claim, issue or 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 upon application 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.
Article SEVENTH of our 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. Section 102(b) of the Delaware General
Corporation Law, as amended, permits a corporation to include in its certificate of incorporation a
provision eliminating or limiting the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director (i) for any breach of the
directors 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) under
Section 174 of the Delaware General Corporation Law (relating to unlawful payment of dividend and
unlawful stock purchase and redemption) or (iv) for any transaction from which the director derived
an improper personal benefit.
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 Exhibit Index immediately preceding the exhibits is incorporated herein by reference.
Item 9. Undertakings.
1. Item 512(a) of Regulation S-K. The undersigned registrant hereby undertakes:
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(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 (i) and (ii) do not apply if the information required to
be included in a post-effective amendment by those paragraphs is contained in reports filed
with or furnished to the Commission by the registrant 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 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.
2. Item 512(b) of Regulation S-K. The undersigned registrant hereby undertakes that,
for purposes of determining any liability under the Securities Act, each filing of the registrants
annual report pursuant to Section 13(a) or 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.
3. Item 512(h) of Regulation S-K. 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.
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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 Parsippany, State of New Jersey, on this 30th day of
June, 2010.
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THE MEDICINES COMPANY
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By: |
/s/ Clive A. Meanwell
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Clive A. Meanwell |
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Chairman and Chief Executive Officer |
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of The Medicines Company, hereby severally
constitute and appoint Clive A. Meanwell and Glenn P. Sblendorio, 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 of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and confirming 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 dates indicated.
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Signature |
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Date |
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/s/ Clive A. Meanwell
Clive A. Meanwell
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Chief Executive Officer,
President and Chairman
of the Board of Directors
(Principal Executive Officer)
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June 30, 2010 |
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/s/ Glenn P. Sblendorio
Glenn P. Sblendorio
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Executive Vice President,
Chief Financial Officer and
Treasurer
(Principal Financial and
Accounting Officer)
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June 30, 2010 |
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/s/ William W. Crouse
William W. Crouse
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Director
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June 30, 2010 |
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/s/ Robert J. Hugin
Robert J. Hugin
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Director
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June 30, 2010 |
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Signature |
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/s/ Armin M. Kessler
Armin M. Kessler
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Director
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June 30, 2010 |
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/s/ Robert G. Savage
Robert G. Savage
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Director
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June 30, 2010 |
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/s/ Hiroaki Shigeta
Hiroaki Shigeta
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Director
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June 30, 2010 |
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/s/ Melvin K. Spigelman
Melvin K. Spigelman
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Director
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June 30, 2010 |
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/s/ Elizabeth H.S. Wyatt
Elizabeth H.S. Wyatt
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Director
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June 30, 2010 |
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INDEX TO EXHIBITS
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Number |
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Description |
4.1(1)
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Third Amended and Restated Certificate of Incorporation of the
registrant, as amended |
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4.2(2)
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Amended and Restated By-laws of the registrant, as amended |
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5
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Opinion of Senior Vice President and General Counsel of the
Registrant |
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23.1
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Consent of Senior Vice President and General Counsel (included in
Exhibit 5) |
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23.2
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Consent of Ernst & Young LLP, Independent Registered Accounting
Firm |
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24
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Power of attorney (included on the signature pages of this
registration statement) |
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99.1(3)
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2010 Employee Stock Purchase Plan |
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(1) |
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Previously filed with the Securities and Exchange Commission as Exhibit 4.1 to the
Registrants Amendment No. 1 to the registrants registration statement on Form 8-A/A, filed
July 14, 2005 and incorporated herein by reference. |
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(2) |
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Previously filed with the Securities and Exchange Commission as Exhibit 3.2 to the
Registrants annual report on Form 10-K for the year ended December 31, 2007 and incorporated
herein by reference. |
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(3) |
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Previously filed with the Securities and Exchange Commission as Appendix I to the
Registrants definitive proxy statement, filed April 30, 2010 and incorporated herein by
reference. |