As filed with the Securities and Exchange Commission on June 19, 2009
Registration No. 333-
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United States
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 or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
32 Wiggins Avenue
Bedford, Massachusetts 01730
(781) 457-9000
(Address of Principal Executive Offices)
ANIKA THERAPEUTICS, INC.
AMENDED AND RESTATED 2003 STOCK OPTION AND INCENTIVE PLAN
(Full title of the plan)
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Charles H. Sherwood, Ph.D.
President and Chief Executive Officer
Anika Therapeutics, Inc.
32 Wiggins Avenue
Bedford, Massachusetts 01730
(781) 457-9000
(Name and address of agent for service)
With copies to:
H. David Henken, Esq.
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
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 [ ] Accelerated filer [x]
Non-accelerated filer [ ] Smaller Reporting Company [ ]
(Do not check if a smaller reporting company)
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount Proposed Maximum Proposed Maximum Amount of
to be Registered to be Offering Price Aggregate Registration
Registered per Share Offering Price Fee
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Common Stock, par value $0.01 per share (1) 850,000 (2) $5.22 $4,437,000 (3) $247.58
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(1) This Registration Statement also relates to the rights to purchase shares of
Series B Junior Participating Cumulative Preferred Stock of the Registrant that
are attached to all shares of common stock issued, pursuant to the terms of the
Registrant's Shareholder Rights Agreement, dated as of April 7, 2008. 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.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement shall also cover any additional
shares of common stock which become issuable under the Registrant's Amended and
Restated 2003 Stock Option and Incentive Plan by reason of any stock dividend,
stock split, recapitalization or any other similar transaction.
(3) An assumed price of $5.22 per share, which is the average of the high and
low prices of the Company's common stock reported on the NASDAQ Global Select
Market on June 16, 2009, is set forth solely for purposes of calculating the
filing fee pursuant to Rule 457(h) and Rule 457(c) under the Securities Act.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by Anika
Therapeutics, Inc. (the "Company" or the "Registrant") for the purpose of
registering an additional 850,000 shares of Common Stock, par value $0.01 per
share ("Common Stock"), of the Company reserved for issuance under the Anika
Therapeutics, Inc. Amended and Restated 2003 Stock Option and Incentive Plan
(the "Plan"). The securities subject to this Registration Statement on Form S-8
are of the same class as other securities for which a Registration Statement on
Form S-8 was previously filed by the Company and declared effective by the
Securities and Exchange Commission (the "Commission"). Accordingly, pursuant to
General Instruction E to Form S-8, the Company hereby incorporates by reference
into this Registration Statement the contents of the Registration Statement on
Form S-8 previously filed with the Commission on November 7, 2003 (File No.
333-110326) and the Common Stock registered thereunder is being carried forward
to this Registration Statement. Following the registration of the additional
shares of Common Stock under this Registration Statement, an aggregate total of
2,350,000 shares of Common Stock will be registered under the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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*The documents containing the information specified in this Part I will
be sent or given to employees, directors or others as specified by Rule
428(b)(1) of the Securities Act of 1933, as amended. In accordance with the
rules and regulations of the Commission and the Introductory Note to Part I of
Form S-8, such documents are not being filed with the Commission either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 6. Indemnification of Directors and Officers.
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The Company is a Massachusetts corporation. Section 2.02(b)(4) of the
Massachusetts Business Corporation Act (the "MBCA") provides that a corporation
may, in its articles of organization, eliminate or limit a director's personal
liability to the corporation for monetary damages for breaches of fiduciary
duty, except in circumstances involving (i) a breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) acts or omissions not in
good faith or which involve intentional misconduct or a knowing violation of
law, (iii) improper distributions, and (iv) transactions from which the director
derived an improper personal benefit.
Section 8.51 of the MBCA permits a corporation to indemnify a director
if the individual (i) acted in good faith, (ii) reasonably believed that his or
her conduct was in the best interests of the corporation or at least not opposed
to the best interest of the corporation, (iii) in the case of a criminal
proceeding, had no reasonable cause to believe his or her conduct was unlawful,
or (iv) engaged in conduct for which he or she would not be liable under the
corporation's articles of organization, as authorized by Section 2.02(b)(4) of
the MBCA. Section 8.56 of the MBCA permits a corporation to indemnify an officer
to the same extent as a director, and to such further extent as may be provided
in the corporation's articles of organization or by-laws, except for liability
arising out of acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law. Indemnification may not be made under
Section 8.51 of the MBCA until a determination has been made that
indemnification is permissible because the director has met the relevant
standard of conduct. Under Section 8.55 of the MBCA, that determination must be
made by (i) a majority vote of all disinterested directors or a majority of a
committee of disinterested directors (in each case, if there are at least two
disinterested directors), (ii) special legal counsel, or (iii) the stockholders
of the corporation.
Under Sections 8.53 and 8.56 of the MBCA, a corporation may pay for or
reimburse reasonable expenses prior to the final disposition of a proceeding
involving a director or officer, provided that the director or officer has
delivered a written undertaking of his or her good faith that he or she has met
the standard of conduct necessary for indemnification, and a written undertaking
to repay the funds if he or she is determined not to have met the relevant
standard of conduct.
Sections 8.52 and 8.56(c) of the MBCA mandate indemnification for
reasonable expenses in connection with proceedings in which a director or
officer is wholly successful, on the merits or otherwise. Furthermore, Section
8.54 of the MBCA provides that a court may direct a corporation to indemnify a
director or officer if the court determines that (i) the director or officer is
entitled to mandatory indemnification under the MBCA, (ii) the director or
officer is entitled to indemnification pursuant to a provision in the
corporation's articles of organization or bylaws or in a contract or a board or
shareholder resolution, or (iii) it is fair and reasonable to indemnify the
director or officer, regardless of whether he or she met the relevant standard
of conduct.
Article 6A of the Company's Restated Articles of Organization, as
amended (the "Articles of Organization"), provides that: except to the extent
that the MBCA 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 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 Company
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 or her action was in
the best interest of the Company (or participants or beneficiaries of any
employee benefit plan of the Company). The Company 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 provides that the Company shall pay expenses incurred in
defending any action, suit, proceeding or investigation in advance of its final
disposition, if the Company does not assume the defense of the 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 provides 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 or her 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.
The Company carries directors and officers liability insurance for the
benefit of its directors and officers.
Item 8. Exhibits.
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No. Description Location
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4.1 Restated Articles of Organization Filed as Exhibit 3.1 to the Company's Registration
Statement on Form 10 (File No. 000-21326), filed with the
Commission on March 5, 1993 and incorporated herein by
reference.
4.2 Certificate of Vote of Directors Establishing a Series Filed as an Exhibit to the Company's Registration Statement
of Convertible Preferred Stock on Form 10 (File No. 000-21326), filed with the Commission
on March 5, 1993 and incorporated herein by reference.
4.3 Amendment to the Restated Articles of Organization Filed as Exhibit 3.1 to the Company's Quarterly Report on
Form 10-QSB for the quarterly period ended November 30,
1996 (File No. 000-21326), filed with the Commission on
January 14, 1997 and incorporated herein by reference.
4.4 Amendment to the Restated Articles of Organization Filed as Exhibit 3.1 to the Company's Quarterly Report on
Form 10-QSB for the quarterly period ended June 30, 1998
(File No. 001-14027), filed with the Commission on August
14, 1998 and incorporated herein by reference.
4.5 Amendment to the Restated Articles of Organization Filed as Exhibit 3.3 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2002
(File No. 001-14027), filed with the Commission on August
14, 2002 and incorporated herein by reference.
4.6 Amended and Restated Certificate of Vote of Directors Filed as Exhibit 3.1 to the Company's Registration
Establishing a Series of Preferred Stock of the Company Statement on Form 8-A12B (File No. 001-14027), filed
classifying and designating the Series B Junior with the Commission on April 7, 2008 and incorporated
Participating Cumulative Preferred Stock herein by reference.
4.7 Amendment to the Restated Articles of Organization Filed as Exhibit 3.7 to the Company's Annual Report on
Form 10-K for the year ended December 31, 2008 (File
No. 001-14027), filed with the Commission on March 9,
2009 and incorporated herein by reference.
4.8 Amended and Restated Bylaws Filed as Exhibit 3.6 to the Company's Quarterly Report
on Form 10-Q for the quarterly period ended June 30,
2002 (File No. 001-14027), filed with the Commission
on August 14, 2002 and incorporated herein by
reference.
4.9 Shareholder Rights Agreement, dated as of April 7, 2008, Filed as Exhibit 4.1 to the Company's Registration
between the Company and American Stock Transfer & Trust Statement on Form 8-A12B (File No. 001-14027), filed
Company with the Commission on April 7, 2008 and incorporated
herein by reference.
4.10 Amended and Restated 2003 Stock Option and Incentive Plan Filed as Exhibit 10.1 to the Company's Current Report
on Form 8-K (File No. 001-14027), filed with the
Commission on June 11, 2009 and incorporated herein by
reference.
5.1 Opinion of Goodwin Procter LLP Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Filed herewith.
Registered Accounting Firm
23.2 Consent of Goodwin Procter LLP Included in Exhibit 5.1 hereto.
24.1 Powers of Attorney Included on signature pages to this Registration
Statement.
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 Town of Bedford, Commonwealth of Massachusetts, on this 19th
day of June, 2009.
Anika Therapeutics, Inc.
By: /s/ Charles H. Sherwood, Ph.D.
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Charles H. Sherwood, Ph.D.
President and Chief Executive Officer
(Principal Executive Officer)
KNOW ALL BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints Charles H. Sherwood as such person's true and
lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for such person 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 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 date indicated.
Signatures Title Date
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/s/ Charles H. Sherwood, Ph.D. President, Chief Executive Officer and Director June 19, 2009
------------------------------------ (Principal Executive Officer)
Charles H. Sherwood, Ph.D.
/s/ Kevin W. Quinlan Chief Financial Officer and June 19, 2009
------------------------------------ Treasurer (Principal Financial Officer and
Kevin W. Quinlan Principal Accounting Officer)
/s/ Joseph L. Bower Director June 19, 2009
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Joseph L. Bower
/s/ Eugene A. Davidson, Ph.D. Director June 19, 2009
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Eugene A. Davidson, Ph.D.
/s/ Raymond J. Land Director June 19, 2009
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Raymond J. Land
/s/ John C. Moran Director June 19, 2009
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John C. Moran
/s/ Steven E. Wheeler Director June 19, 2009
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Steven E. Wheeler
EXHIBIT INDEX
No. Description Location
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4.1 Restated Articles of Organization Filed as Exhibit 3.1 to the Company's Registration Statement
on Form 10 (File No. 000-21326), filed with the Commission
on March 5, 1993 and incorporated herein by reference.
4.2 Certificate of Vote of Directors Establishing a Filed as an Exhibit to the Company's Registration Statement
Series of Convertible Preferred Stock on Form 10 (File No. 000-21326), filed with the Commission
on March 5, 1993 and incorporated herein by reference.
4.3 Amendment to the Restated Articles of Filed as Exhibit 3.1 to the Company's Quarterly Report on
Organization Form 10-QSB for the quarterly period ended November 30,
1996 (File No. 000-21326), filed with the Commission on
January 14, 1997 and incorporated herein by reference.
4.4 Amendment to the Restated Articles of Filed as Exhibit 3.1 to the Company's Quarterly Report on
Organization Form 10-QSB for the quarterly period ended June 30, 1998
(File No. 001-14027), filed with the Commission on August
14, 1998 and incorporated herein by reference.
4.5 Amendment to the Restated Articles of Filed as Exhibit 3.3 to the Company's Quarterly Report on
Organization Form 10-Q for the quarterly period ended June 30, 2002
(File No. 001-14027), filed with the Commission on August
14, 2002 and incorporated herein by reference.
4.6 Amended and Restated Certificate of Vote of Filed as Exhibit 3.1 to the Company's Registration Statement
Directors Establishing a Series of Preferred on Form 8-A12B (File No. 001-14027), filed with the
Stock of the Company classifying and Commission on April 7, 2008 and incorporated herein by
designating the Series B Junior Participating reference.
Cumulative Preferred Stock
4.7 Amendment to the Restated Articles of Filed as Exhibit 3.7 to the Company's Annual Report on Form
Organization 10-K for the year ended December 31, 2008 (File No. 001-
14027), filed with the Commission on March 9, 2009 and
incorporated herein by reference.
4.8 Amended and Restated Bylaws Filed as Exhibit 3.6 to the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2002
(File No. 001-14027), filed with the Commission on August
14, 2002 and incorporated herein by reference.
4.9 Shareholder Rights Agreement, dated as of April Filed as Exhibit 4.1 to the Company's Registration Statement
7, 2008, between the Company and American Stock on Form 8-A12B (File No. 001-14027), filed with the
Transfer & Trust Company Commission on April 7, 2008 and incorporated herein by
reference.
4.10 Amended and Restated 2003 Stock Option and Filed as Exhibit 10.1 to the Company's Current Report on
Incentive Plan Form 8-K (File No. 001-14027), filed with the Commission on
June 11, 2009 and incorporated herein by reference.
5.1 Opinion of Goodwin Procter LLP Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP, Filed herewith.
Independent Registered Accounting Firm
23.2 Consent of Goodwin Procter LLP Included in Exhibit 5.1 hereto.
24.1 Powers of Attorney Included on signature pages to this Registration Statement.