As filed with the Securities and Exchange Commission on February 6, 2002
Registration No. 33- ______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
ADVANCED MAGNETICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2742593
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
61 Mooney Street, Cambridge, Massachusetts 02138
(Address of Principal Executive Offices) (Zip Code)
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ADVANCED MAGNETICS, INC. 2000 STOCK PLAN
(Full title of the plan)
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Jerome Goldstein
Chief Executive Officer, President and Treasurer
Advanced Magnetics, Inc.
61 Mooney Street
Cambridge, Massachusetts 02138
(Name and address of agent for service)
(617) 497-2070
(Telephone number, including area code, of agent for service)
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Copy to:
Sharon Goddard White, Esq.
WHITE & MCDERMOTT, P.C.
65 William Street
Wellesley, Massachusetts 02481
(781) 431-1700
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CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered(1) price per share(2) price registration fee
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Common Stock,
$.01 par value 1,000,000 shares $3.85 $3,850,000 $354.20
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(1) The maximum number of shares which may be sold upon the exercise of
options granted under the Advanced Magnetics, Inc. 2000 Stock Plan is subject
to adjustment in accordance with certain structural anti-dilution and other
provisions of the 2000 Stock Plan. Accordingly, pursuant to Rule 416 under
the Securities Act, as amended, this registration statement covers, in
addition to the number of shares stated above, an indeterminate number of
shares which may be subject to grant or otherwise issuable after the
operation of any such structural anti-dilution and other provisions.
(2) 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 and low prices of the Common
Stock on the American Stock Exchange on February 5, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a) prospectus
is omitted from this Registration Statement in accordance with Rule 428
under the Securities Act and the "Note" to Part I of Form S-8.
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 are hereby incorporated by reference in this registration
statement:
1. The registrant's Annual Report on Form 10-K, as amended, for the year
ended September 30, 2001; and
2. The section entitled "Description of Registrant's Securities to be
Registered" contained in the registrant's Registration Statement
No. 0-14732 on Form 8-A filed pursuant to Section 12(g) of the
Exchange Act.
In addition, 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 hereby have
been sold or which deregisters all of such securities then remaining unsold,
shall be deemed to be incorporated by reference into this registration statement
and to be a part hereof from the date of filing of such documents. Any statement
contained herein or in any 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 to constitute a part of
this registration statement, except as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Legal matters in connection with the issuance of Common Stock offered
hereby have been passed upon for the registrant by White & McDermott, P.C. as
counsel to the registrant. Rachel Goldstein Konforty, an associate of White &
McDermott, P.C., is the Assistant Secretary of the registrant and beneficially
owns less than three percent of the registrant's Common Stock, a portion of
which Ms. Konforty disclaims beneficial ownership and control.
Item 6. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware empowers a
corporation to indemnify any 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 or she is or was a director, officer, employee or agent of the
corporation or another enterprise if serving at the request of the corporation.
Depending on the character of the proceeding, a corporation may indemnify
against expenses (including
attorney's fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred in connection with such action, suit or proceeding if the
person indemnified acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. In the case of an action by or in the
right of the corporation, no indemnification may be made in 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 Court of
Chancery or the court in which such action or suit was brought shall determine
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 that the court shall deem proper. Section 145 further provides that to
the extent a director or officer of a corporation has been successful in the
defense of any action, suit or proceeding referred to above, or in defense of
any claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorney's fees) actually and reasonably incurred by him or
her in connection therewith.
The registrant's Certificate of Incorporation, as amended, provides that
the registrant shall, to the fullest extent permitted by law, indemnify all
directors, officers, employees and agents of the registrant. The Certificate of
Incorporation also contains a provision eliminating the liability of directors
of the registrant to the registrant or its stockholders for monetary damage, to
the fullest extent permitted by law. The Certificate of Incorporation also
permits the registrant to maintain insurance to protect itself and any director,
officer, employee or agent against any liability with respect to which the
registrant would have the power to indemnify such persons under the Delaware
General Corporation Law. The Certificate of Incorporation also permits the
registrant to enter into agreements with any director, officer, employee or
agent providing for indemnification rights equivalent to or greater than the
indemnification rights set forth in the Certificate of Incorporation. The
registrant has entered into indemnification agreements with certain of its
directors.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
registrant pursuant to the foregoing provisions, the registrant has been
informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy and is therefore unenforceable.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this registration statement:
4.1 Certificate of Incorporation of the registrant, as amended (incorporated by
reference to Exhibit 3.1 to the registrant's Annual Report on Form 10-K for
the fiscal year ended September 30, 2000, File No. 0-14732).
4.2 By-Laws of the registrant, as amended (incorporated by reference to Exhibit
3.2 to the registrant's Annual Report on Form 10-K for the fiscal year
ended September 30, 2000, File No. 0-14732).
4.3 Specimen certificate representing the registrant's Common Stock
(incorporated by reference to Exhibit 6 to the Registration Statement on
Form 8-A of the registrant, Reg. No. 1-10865).
*5.1 Opinion of White & McDermott, P.C. as to the legality of the securities
being registered.
10.1 2000 Stock Plan (incorporated by reference to Appendix B to the
registrant's definitive proxy statement, filed December 20, 2000, File No.
000-14732).
*23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2 Consent of White & McDermott, P.C. (included in Exhibit 5.1).
24 Power of Attorney (included in the signature pages of this registration
statement).
* Filed herewith.
Item 9. Undertakings.
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 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 maximum 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 the "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;
provided, however, that paragraphs (1)(i) and (1)(ii) 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 Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
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.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) 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.
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 General Corporation Law of the State of Delaware, the
Certificate of Incorporation of the registrant, as amended, or the By-Laws of
registrant, as amended, indemnification agreements entered into between
registrant and its officers and directors, 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 of 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.
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 Cambridge, the Commonwealth of Massachusetts, on this
5th day of February, 2002.
ADVANCED MAGNETICS, INC.
By: /s/ Jerome Goldstein
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Jerome Goldstein
Chairman of the Board, Chief Executive Officer,
President and Treasurer
POWER OF ATTORNEY
We, the undersigned officers and directors of Advanced Magnetics, Inc.
hereby severally constitute Jerome Goldstein and James A. Matheson 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
pre-effective and post-effective 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 Advanced Magnetics, Inc. to comply with the
provisions of the Securities Act, 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 on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/S/ JEROME GOLDSTEIN Chairman of the Board, February 5, 2002
--------------------------- Chief Executive Officer, President
Jerome Goldstein and Treasurer (principal executive
and financial officer)
/S/ JAMES A. MATHESON Vice President of Finance February 5, 2002
--------------------- (principal accounting officer)
James A. Matheson
/S/ SHELDON L. BLOCH Director February 5, 2002
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Sheldon L. Bloch
/S/ MICHAEL D. LOBERG Director February 5, 2002
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Michael D. Loberg
/S/ EDWARD B. ROBERTS Director February 5, 2002
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Edward B. Roberts
/S/ GEORGE M. WHITESIDES Director February 5, 2002
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George M. Whitesides
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION OF DOCUMENTS
4.1 Certificate of Incorporation of the registrant, as amended (incorporated
by reference to Exhibit 3.1 to the registrant's Annual Report on Form
10-K for the fiscal year ended September 30, 2000, File No. 0-14732).
4.2 By-Laws of the registrant, as amended (incorporated by reference to
Exhibit 3.2 to the registrant's Annual Report on Form 10-K for the
fiscal year ended September 30, 2000, File No. 0-14732).
4.3 Specimen certificate representing the registrant's Common Stock
(incorporated by reference to Exhibit 6 to the Registration Statement on
Form 8-A of the registrant, Reg. No. 1-10865).
*5.1 Opinion of White & McDermott, P.C. as to the legality of the securities
being registered.
10.1 2000 Stock Plan (incorporated by reference to Appendix B to the
registrant's definitive proxy statement, filed December 20, 2000, File
No. 000-14732).
*23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2 Consent of White & McDermott, P.C. (included in Exhibit 5.1).
24 Power of Attorney (included in the signature pages of this registration
statement).
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* Filed herewith.