As filed with the Securities and Exchange Commission on December 17, 2002
(S-4) Registration No. 333-101059/(S-1) Registration No. 333-101464
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
(WITH RESPECT TO 6.52% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE DECEMBER 31,
2009 BEING ISSUED IN THE EXCHANGE OFFER)
-------------------
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
(WITH RESPECT TO THE ADDITIONAL 6.52% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE
DECEMBER 31, 2009 BEING OFFERED FOR CASH)
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ALKERMES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 2834 23-2472830
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
88 Sidney Street, Cambridge, Massachusetts 02139-4136
Telephone: (617) 494-0171
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Richard F. Pops, Chief Executive Officer, Alkermes, Inc.
88 Sidney Street, Cambridge, Massachusetts 02139-4234
Telephone: (617) 494-0171
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
-------------------------
Copies to:
Morris Cheston, Jr., Esq. Abigail Arms, Esq. Mitchell S. Bloom, Esq.
Ballard Spahr Andrews & Ingersoll, LLP Shearman & Sterling Testa, Hurwitz & Thibeault, LLP
1735 Market Street, 51st Floor 801 Pennsylvania Avenue, N.W. 125 High Street
Philadelphia, Pennsylvania 19103 Washington, D.C. 20004 Boston, Massachusetts 02110
Telephone: (215) 665-8900 Telephone: (202) 508-8000 Telephone: (617) 248-7000
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE SEC ACTING PURSUANT TO SECTION 8(A) MAY DETERMINE.
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EXPLANATORY NOTE
This Amendment No. 2 to Alkermes, Inc.'s Registration Statement on Form S-4 and
Amendment No. 1 to its Registration Statement on Form S-1 are being filed to
include a copy of the prospectus supplement dated December 17, 2002.
The information in this prospectus supplement may change. We may not complete
the exchange offer and issue these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
supplement is not an offer to sell securities, and it is not soliciting an offer
to buy these securities, in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 17, 2002
[ALKERMES LOGO]
PROSPECTUS SUPPLEMENT
(TO PRELIMINARY PROSPECTUS DATED NOVEMBER 26, 2002)
This prospectus supplement supplements our preliminary prospectus dated November
26, 2002 relating to our offer to exchange up to $115,000,000 of our 6.52%
Convertible Senior Subordinated Notes due December 31, 2009 for up to an
aggregate principal amount of $200,000,000 of our outstanding 3.75% Convertible
Subordinated Notes due 2007 and our offer, to holders of existing notes who
tender their existing notes in the exchange offer, to purchase for cash up to
$50,000,000 of the new notes. This prospectus supplement should be read with the
preliminary prospectus.
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RECENT DEVELOPMENTS
On December 13, 2002, we and Eli Lilly and Company expanded our collaboration
for the development of inhaled formulations of insulin based on our AIR(R)
pulmonary drug delivery technology. These amendments to the collaboration follow
the achievement of development milestones relating to clinical progress, and
scale-up and manufacturing activities for our insulin dry powder aerosols and
inhalers.
Pursuant to a Stock Purchase Agreement, dated December 13, 2002, Lilly agreed to
purchase $30 million of our newly issued convertible preferred stock. We will
fund the joint development program for inhaled insulin during calendar years
2003 and 2004. In addition, the royalty rate payable to us based on revenues of
potential inhaled insulin products has been increased. Lilly has the right to
exchange the preferred shares for a reduction in the royalty rate payable to us.
The preferred stock is convertible into our common stock at market price at our
option and upon filing of a new drug application with the U.S. Food and Drug
Administration for a pulmonary insulin product. The collaboration cannot
terminate without cause until January 2005. We will register for resale all
shares of our common stock issued upon conversion of the preferred stock.
We entered into a license agreement with GlaxoSmithKline in May 2000 for the
use of our AIR technology in the development of multiple product candidates for
indications in four respiratory disease categories. Glaxo has not met all of
its obligations to develop product candidates under two respiratory disease
categories in a timely manner and, under the terms of the license agreement,
those two respiratory disease categories automatically reverted to us on
November 30, 2002. On December 16, 2002, Glaxo delivered to us notice that it
intended to exercise its right to terminate the license agreement by providing
us with 60 days' prior written notice, therefore the remaining two respiratory
disease categories will revert to us on February 14, 2003.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus supplement and the preliminary prospectus are part of a
Registration Statement on Form S-1 and a Registration Statement on Form S-4
filed with the Securities and Exchange Commission. You may read and copy the
Registration Statements, amendments to the Registration Statements and other
documents we file with Securities and Exchange Commission at the Securities and
Exchange Commission's public reference room located at 450 Fifth Street, N.W.,
Washington, DC 20549. You can request copies of these documents by writing to
the Securities and Exchange Commission and paying a fee for the copying cost.
Please call the Securities and Exchange Commission at 1-800-SEC-0330 for more
information about the operation of the public reference rooms. The Registration
Statements and our other Securities and Exchange Commission filings are also
available at the Securities and Exchange Commission's web site at
"http://www.sec.gov". Upon written or oral request, we will provide without
charge to each person, including any beneficial owner to whom this prospectus
supplement is delivered, a copy of any or all of such documents which are filed
with the Securities and Exchange Commission (other than exhibits to such
documents). Written or oral requests for copies should be directed to Investor
Relations, 88 Sidney Street, Cambridge, Massachusetts 02139 or (617) 494-0171.
S-1
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the amounts of expenses attributed to the
issuance of the securities offered pursuant to this registration statement which
shall be borne by us. All of the expenses listed below, except the SEC
registration fee and the NASD filing fee, represent estimates only.
ESTIMATED
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SEC registration fee.................................................... $ 23,161
NASD filing fee......................................................... 26,175
Exchange agent fees..................................................... 3,750
Information agent fees.................................................. 10,000
Printing expenses....................................................... 35,000
Accounting fees and expenses............................................ 212,500
"Blue Sky" fees and expenses (including legal fees)..................... 2,000
Legal fees and expenses................................................. 200,000
Miscellaneous fees and expenses......................................... 7,414
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Total......................................................... $520,000
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ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741 through 1750 of the Pennsylvania Business Corporation Law of 1988,
as amended, permits, and in some cases requires, the indemnification of
officers, directors and employees of the Registrant. Section 5.1 of the
Registrant's By-Laws provides that the Registrant shall indemnify any director
or officer of the Registrant against expenses (including legal fees), damages,
punitive damages, judgments, penalties, fines and amounts paid in settlement,
actually and reasonably incurred by him or her, to the fullest extent now or
hereafter permitted by law in connection with any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, brought or threatened to be brought against him or her, including
actions or suits by or in the right of the Registrant, by reason of the fact
that he or she is or was a director or officer of the Registrant or any of its
subsidiaries or acted as a director or officer or in any other capacity on
behalf of the Registrant or any of its subsidiaries or is or was serving at the
request of the Registrant as a director, officer, partner, fiduciary or trustee
of another corporation, partnership, joint venture, trust, employee benefit plan
or other enterprise.
Section 5.2 of the Registrant's By-Laws provides that the Registrant will pay
the expenses (including attorneys' fees and disbursements) actually and
reasonably incurred in defending a proceeding on behalf of any officer or
director entitled to indemnification in advance of the final disposition of such
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it shall ultimately be determined that such
officer or director is not entitled to be indemnified by the Registrant as
authorized. The financial ability of such officer or director to make such
repayment shall not be prerequisite to the making of an advance.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit Number Description
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1.1 Form of Dealer Manager Agreement.*
1.2 Form of Placement Agreement.*
II-1
Exhibit Number Description
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3.1 Third Amended and Restated Articles of Incorporation as
filed with the Pennsylvania Secretary of State on June
7, 2001 (Incorporated by reference to Exhibit 3.1 to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 2001).
3.1(a) Amendment to Third Amended and Restated Articles of
Incorporation as filed with the Pennsylvania Secretary
of State on December 16, 2002 (2002 Preferred Stock
Terms) (Incorporated by reference to Exhibit 3.1 to the
Registrant's Current Report on Form 8-K filed on
December 16, 2002).
3.2 Amended and Restated By-Laws of Alkermes, Inc.,
effective as of February 11, 2001 (Incorporated by
reference to Exhibit 3.2 to the Registrant's Report on
Form 10-K for the fiscal year ended March 31, 2001).
4.1 Form of Indenture between Registrant and State Street
Bank and Trust Company, as trustee, relating to the
Registrant's 6.52% Convertible Senior Subordinated Notes
due December 31, 2009.*
4.2 Form of 6.52% Convertible Senior Subordinated Note due
December 31, 2009 (Included as Exhibit A to Exhibit
4.1).*
4.3 Specimen of Common Stock Certificate of Alkermes, Inc.
(Incorporated by reference to Exhibit 4 to the
Registrant's Registration Statement on Form S-1, as
amended (Registration No. 33-40250)).
4.4 Indenture, dated February 18, 2000, between the
Registrant and State Street Bank and Trust Company
(relating to the existing notes) (Incorporated by
reference to Exhibit 4.6 to the Registrant's
Registration Statement on Form S-3 (Registration No.
333-31354)).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.*
10.1 Amended and Restated 1989 Non-Qualified Stock Option
Plan, as amended (Incorporated by reference to Exhibit
4.2(c) to the Registrant's Registration Statement on
Form S-8 (File No. 33-44752)).
10.2 Amended and Restated 1990 Omnibus Stock Option Plan, as
amended (Incorporated by reference to Exhibit 10.2 to
the Registrant's Report on Form 10-K for the fiscal year
ended March 31, 1998).
10.3 1991 Restricted Common Stock Award Plan (Incorporated by
reference to Exhibit 4.2(a) to the Registrant's
Registration Statement on Form S-8 (File No. 33-58330)).
10.4 1992 Non-Qualified Stock Option Plan (Incorporated by
reference to Exhibit 10.26 to the Registrant's
Registration Statement on Form S-4, as amended (File No.
33-54932)).
10.5 Stock Option Plan for Non-Employee Directors
(Incorporated by reference to Exhibit 10.5 to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 1996).
10.6 Alkermes, Inc. 1998 Equity Incentive Plan (Incorporated
by reference to Exhibit 10.6 to the Registrant's Report
on Form 10-K for the fiscal year ended March 31, 1999).
II-2
Exhibit Number Description
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10.7 1999 Stock Option Plan, as amended (Incorporated by
reference to Exhibit 10.1 to the Registrant's Report on
Form 10-Q for the quarter ended September 30, 2002).
10.8 2002 Restricted Stock Award Plan (Incorporated by
reference to Exhibit 10.2 to the Registrant's Report on
Form 10-Q for the quarter ended September 30, 2002).
10.9 Lease, dated as of October 26, 2000, between FC88
Sidney, Inc. and Alkermes, Inc. (Incorporated by
reference to Exhibit 10.3 to the Registrant's Report on
Form 10-Q for the quarter ended December 31, 2000).
10.10 Lease, dated as of October 26, 2000, between Forest City
64 Sidney Street, Inc. and Alkermes, Inc. (Incorporated
by reference to Exhibit 10.4 to the Registrant's Report
on Form 10-Q for the quarter ended December 31, 2000).
10.11 Lease, dated July 26, 1993, between the Massachusetts
Institute of Technology and Alkermes, Inc. (Incorporated
by reference to Exhibit 10.8 to the Registrant's Report
on Form 10-K for the fiscal year ended March 31, 1997).
10.11(a) First Amendment of Lease, dated June 9, 1997, between
the Massachusetts Institute of Technology and Alkermes,
Inc. (Incorporated by reference to Exhibit 10.8(a) to
the Registrant's Report on Form 10-K for the fiscal year
ended March 31, 1997).
10.12 Product Development Agreement, dated as of March 6,
1992, between Alkermes Clinical Partners, L.P. and the
Registrant (Incorporated by reference to Exhibit 10.21
to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1992).
10.13 Purchase Agreement, dated as of March 6, 1992, by and
among the Registrant and each of the Limited Partners,
from time to time, of the Partnership (Incorporated by
reference to Exhibit 10.22 to the Registrant's Report on
Form 10-K for the fiscal year ended March 31, 1992).
10.14 Alkermes Clinical Partners, L.P. Agreement of Limited
Partnership, dated as of February 7, 1992 (Incorporated
by reference to Exhibit 10.23 to the Registrant's Report
on Form 10-K for the fiscal year ended March 31, 1992).
10.14(a) Amendment No. 1 to Alkermes Clinical Partners, L.P.
Agreement of Limited Partnership, dated as of September
29, 1992 (Incorporated by reference to Exhibit 10.22(a)
to the Registrant's Registration Statement on Form S-4,
as amended (File No. 33-54932)).
10.14(b) Amendment No. 2 to Alkermes Clinical Partners, L.P.
Agreement of Limited Partnership, dated as of March 30,
1993 (Incorporated by reference to Exhibit 10.22(b) to
the Registrant's Registration Statement on Form S-3, as
amended (File No. 33-64964)).
10.15 Class A Note of Alkermes Development Corporation II,
dated April 10, 1992, to PaineWebber Development
Corporation in the amount of $100.00 (Incorporated by
reference to Exhibit 10.24 to the Registrant's Report on
Form 10-K for the fiscal year ended March 31, 1992).
10.16 License Agreement, dated as of April 14, 1999, by and
between Genentech, Inc. and Alkermes Controlled
Therapeutics, Inc. (Incorporated by reference to Exhibit
10.18 to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 1999).**
II-3
Exhibit Number Description
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10.17 Manufacture and Supply Agreement, entered into April 5,
2001, by and between Alkermes, Inc. and Genentech, Inc.
(Incorporated by reference to Exhibit 10.16 to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 2001).****
10.18 License Agreement, dated as of February 13, 1996,
between Medisorb Technologies International L.P. and
Janssen Pharmaceutica International (United States)
(assigned to Alkermes Controlled Therapeutics Inc. II in
March 1996) (Incorporated by reference to Exhibit 10.19
to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1996).***
10.19 License Agreement, dated as of February 21, 1996,
between Medisorb Technologies International L.P. and
Janssen Pharmaceutica International (worldwide except
the United States) (assigned to Alkermes Controlled
Therapeutics Inc. II in March 1996) (Incorporated by
reference to Exhibit 10.20 to the Registrant's Report on
Form 10-K for the fiscal year ended March 31, 1996).***
10.20 Manufacturing and Supply Agreement, dated August 6,
1997, by and among Alkermes Controlled Therapeutics Inc.
II, Janssen Pharmaceutica International and Janssen
Pharmaceutica Inc. (Incorporated by reference to Exhibit
10.19 to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 2002).+
10.20(a) Letter Agreement and Exhibits to Manufacturing and
Supply Agreement, dated February 1, 2002, by and among
Alkermes Controlled Therapeutics Inc. II, Janssen
Pharmaceutica International and Janssen Pharmaceutica
Inc. (Incorporated by reference to Exhibit 10.19(a) to
the Registrant's Report on Form 10-K for the fiscal year
ended March 31, 2002).+
10.20(b) Addendum to Manufacturing and Supply Agreement, dated
August 2001, by and among Alkermes Controlled
Therapeutics Inc. II, Janssen Pharmaceutica
International and Janssen Pharmaceutica Inc.
(Incorporated by reference to Exhibit 10.19(b) to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 2002).+
10.21 Patent License Agreement, dated as of August 11, 1997,
between Massachusetts Institute of Technology and
Advanced Inhalation Research, Inc., as amended
(Incorporated by reference to Exhibit 10.25 to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 1999).**
10.22 Letter Agreement, dated September 27, 1996, by and among
Fleet National Bank, Alkermes Controlled Therapeutics,
Inc., Alkermes Controlled Therapeutic Inc. II and the
Registrant (Incorporated by reference to Exhibit 10.3 to
the Registrant's Report on Form 10-Q for the quarter
ended September 30, 1996).
10.23(a) Second Loan Supplement and Modification Agreement, dated
as of March 19, 1998, by and among Fleet National Bank,
Alkermes Controlled Therapeutics, Inc., Alkermes
Controlled Therapeutics Inc. II and the Registrant
(Incorporated by reference to Exhibit 10.29(b) to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 1998).
10.23(b) Third Loan Supplement and Modification Agreement, dated
as of September 24, 1998, by and among Fleet National
Bank, Alkermes Controlled Therapeutics, Inc., Alkermes
Controlled Therapeutics Inc. II and the Registrant
(Incorporated by reference to Exhibit 10.1 to the
Registrant's Report on Form 10-Q for the quarter ended
September 30, 1998).
II-4
Exhibit Number Description
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10.24 Security Agreement, dated as of September 27, 1996, from
the Registrant, Alkermes Controlled Therapeutics, Inc.
and Alkermes Controlled Therapeutic Inc. II to Fleet
National Bank (Incorporated by reference to Exhibit 10.4
to the Registrant's Report on Form 10-Q for the quarter
ended September 30, 1996).
10.25 Pledge Agreement, dated as of September 27, 1996, from
the Registrant to Fleet National Bank (Incorporated by
reference to Exhibit 10.5 to the Registrant's Report on
Form 10-Q for the quarter ended September 30, 1996).
10.26 Mortgage and Security Agreement, dated as of September
27, 1996, from Alkermes Controlled Therapeutics Inc. II
to Fleet National Bank (Incorporated by reference to
Exhibit 10.6 to the Registrant's Report on Form 10-Q for
the quarter ended September 30, 1996).
10.27 Environmental Indemnity Agreement, dated as of September
27, 1996, from the Registrant and Alkermes Controlled
Therapeutics Inc. II to Fleet National Bank
(Incorporated by reference to Exhibit 10.7 to the
Registrant's Report on Form 10-Q for the quarter ended
September 30, 1996).
10.28 Promissory Note, dated March 19, 1998, from the
Registrant, Alkermes Controlled Therapeutics, Inc. and
Alkermes Controlled Therapeutics Inc. II to Fleet
National Bank (Incorporated by reference to Exhibit
10.38 to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 1998).
10.29 Promissory Note, dated September 24, 1998, from the
Registrant, Alkermes Controlled Therapeutics, Inc. and
Alkermes Controlled Therapeutics Inc. II to Fleet
National Bank ($11,000,000) (Incorporated by reference
to Exhibit 10.2 to the Registrant's Report on Form 10-Q
for the quarter ended September 30, 1998).
10.30 Promissory Note, dated September 24, 1998, from the
Registrant, Alkermes Controlled Therapeutics, Inc. and
Alkermes Controlled Therapeutics Inc. II to Fleet
National Bank ($9,000,000) (Incorporated by reference to
Exhibit 10.3 to the Registrant's Report on Form 10-Q for
the quarter ended September 30, 1998).
10.31 Employment Agreement, entered into as of February 7,
1991, between Richard F. Pops and the Registrant
(Incorporated by reference to Exhibit 10.12 to the
Registrant's Registration Statement on Form S-1, as
amended (File No. 33-40250)).
10.32 Change in Control Employment Agreement, dated as of
December 19, 2000, between Alkermes, Inc. and Richard F.
Pops (Incorporated by reference to Exhibit 10.1 to the
Registrant's Report on Form 10-Q for the quarter ended
December 31, 2000).
10.33 Change in Control Employment Agreement, dated as of
December 19, 2000, between Alkermes, Inc. and each of
Raymond T. Bartus, J. Duncan Higgons, James L. Wright,
James M. Frates and Michael J. Landine and dated as of
June 27, 2001, between Alkermes, Inc. and David A.
Broecker (Form of agreement incorporated by reference to
Exhibit 10.2 to Registrant's Report on Form 10-Q for the
quarter ended December 31, 2000).
10.34 Employment Agreement, dated December 22, 2000 by and
between David A. Broecker and the Registrant
(Incorporated by reference to Exhibit 10.32 to the
Registrant's Report on Form 10-K for the fiscal year
ended March 31, 2001).
II-5
Exhibit Number Description
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10.35 Stock Purchase Agreement, dated December 13, 2002,
between Alkermes, Inc. and Eli Lilly and Company
(Incorporated by reference to Exhibit 4.2 to the
Registrant's Current Report on Form 8-K filed on
December 16, 2002).
12.1 Statement regarding computation of ratio of earnings to
fixed charges.*
21.1 Subsidiaries of Alkermes, Inc.*
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP
(included in Exhibit 5.1).*
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney.*
25.1 Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of State Street Bank
and Trust Company.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Letter to Brokers, Dealers, Commercial Banks,
Trust Companies and Other Nominees.*
99.4 Form of Letter to Clients.*
99.5 Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9.*
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* Previously filed.
** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted August 19, 1999. Such provisions have been
filed separately with the Commission.
*** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 3, 1996. Such provisions have been
filed separately with the Commission.
**** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 27, 2001. Such provisions have
been filed separately with the Commission.
+ Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 16, 2002. Such provisions have
been filed separately with the Commission.
ITEM 22. UNDERTAKINGS
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.
II-6
The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
RECENT SALES OF UNREGISTERED SECURITIES
3 3/4% Convertible Subordinated Notes due 2007
In February 2000, we issued and sold $200 million aggregate principal amount of
our existing notes to Robertson Stephens, Adams, Harkness & Hill, Inc., ING
Barings, J.P. Morgan & Co., PaineWebber Incorporated, SG Cowen and U.S. Bancorp
Piper Jaffray (the "Existing Notes Initial Purchasers"). The underwriting
commissions and discounts totaled $6.0 million. The existing notes were issued
and sold in transactions exempt from the registration requirements of the
Securities Act, to persons reasonably believed by the Existing Notes Initial
Purchasers to be "qualified institutional buyers" ("QIBs") as defined in Rule
144A under the Securities Act or institutional accredited investors or
sophisticated investors. For more information on the existing notes see
"Description of Existing Notes" in Part I of this Registration Statement.
Conversion of Convertible Promissory Note
In October 2001, we converted approximately $7.5 million of principal and
interest that was due under a promissory note payable to Schering Corporation
("Schering"), into 328,645 shares of our common stock in a transaction exempt
from the registration requirements of the Securities Act pursuant to Section
4(2) of the Securities Act. We reasonably believed Schering was an accredited
investor based on representations made to us by Schering and by our review of
Schering's filings with the SEC under the Exchange Act.
Private Placement to Collaborative Partner
In August 2000, in connection with the execution of the license agreement with
GlaxoSmithKline ("Glaxo"), we issued and sold 160,030 shares of our common stock
to an affiliate of Glaxo for an aggregate purchase price of $5.0 million, in a
transaction exempt from the registration requirements of the Securities Act
pursuant to Section 4(2) of the Securities Act. We reasonably believed Glaxo was
an accredited investor, based on representations made to us by Glaxo and by our
review of Glaxo's filings with the SEC under the Exchange Act.
Private Placement of Convertible Preferred Stock
In December 2002, pursuant to a Stock Purchase Agreement, we issued and sold to
Eli Lilly and Company ("Lilly") 3,000 shares of our newly issued convertible
preferred stock for an aggregate purchase price of $30 million, in a transaction
exempt from the registration requirements of the Securities Act pursuant to
Section 4(2) of the Securities Act. The preferred stock is convertible into our
common stock at market price at our option and in certain circumstances. We
reasonably believed Lilly was an accredited investor based on representations
made to us by Lilly and by our review of Lilly's filings with the SEC under the
Exchange Act.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Amendment No. 2 to its Registration Statement on Form S-4 and
Amendment No. 1 to Registration Statement on Form S-1 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Cambridge,
Commonwealth of Massachusetts, on December 17, 2002.
ALKERMES, INC.
By: /s/ Richard F. Pops
----------------------------------------
Richard F. Pops, Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 2
to the registrant's Registration Statement on Form S-4 and Amendment No. 1 to
Registration Statement on Form S-1 have been signed by the following persons in
the capacities and on the date indicated.
Signature Title Date
--------- ----- ----
* Director and Chairman of the Board December 17, 2002
------------------------------------
Michael A. Wall
/s/ Richard F. Pops Director and Chief Executive Officer December 17, 2002
------------------------------------ (Principal Executive Officer)
Richard F. Pops
/s/ James M. Frates Vice President, Chief Financial
------------------------------------ Officer and Treasurer (Principal
James M. Frates Financial Officer and Principal December 17, 2002
Accounting Officer)
* Director December 17, 2002
------------------------------------
Floyd E. Bloom
* Director December 17, 2002
------------------------------------
Robert A. Breyer
* Director December 17, 2002
------------------------------------
John K. Clarke
* Director December 17, 2002
------------------------------------
Alexander Rich
* Director December 17, 2002
------------------------------------
Paul Schimmel
*By: /s/ James M. Frates
------------------------------
James M. Frates,
Attorney in Fact
EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
1.1 Form of Dealer Manager Agreement.*
1.2 Form of Placement Agreement.*
3.1 Third Amended and Restated Articles of Incorporation as filed with the Pennsylvania
Secretary of State on June 7, 2001 (Incorporated by reference to Exhibit 3.1 to the
Registrant's Report on Form 10-K for the fiscal year ended March 31, 2001).
3.1(a) Amendment to Third Amended and Restated Articles of Incorporation as filed with the
Pennsylvania Secretary of State on December 16, 2002 (2002 Preferred Stock Terms)
(Incorporated by reference to Exhibit 3.1 to the Registrant's Current Report on
Form 8-K filed on December 16, 2002).
3.2 Amended and Restated By-Laws of Alkermes, Inc., effective as of February 11, 2001
(Incorporated by reference to Exhibit 3.2 to the Registrant's Report on Form 10-K
for the fiscal year ended March 31, 2001).
4.1 Form of Indenture between Registrant and State Street Bank and Trust Company, as
trustee, relating to the Registrant's 6.52% Convertible Senior Subordinated Notes
due December 31, 2009.*
4.2 Form of 6.52% Convertible Senior Subordinated Note due December 31, 2009 (Included
as Exhibit A to Exhibit 4.1).*
4.3 Specimen of Common Stock Certificate of Alkermes, Inc. (Incorporated by reference
to Exhibit 4 to the Registrant's Registration Statement on Form S-1, as amended
(Registration No. 33-40250)).
4.4 Indenture, dated February 18, 2000, between the Registrant and State Street Bank
and Trust Company (relating to the existing notes) (Incorporated by reference to
Exhibit 4.6 to the Registrant's Registration Statement on Form S-3 (Registration
No. 333-31354)).
5.1 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.*
10.1 Amended and Restated 1989 Non-Qualified Stock Option Plan, as amended (Incorporated
by reference to Exhibit 4.2(c) to the Registrant's Registration Statement on Form
S-8 (File No. 33-44752)).
10.2 Amended and Restated 1990 Omnibus Stock Option Plan, as amended (Incorporated by
reference to Exhibit 10.2 to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1998).
10.3 1991 Restricted Common Stock Award Plan (Incorporated by reference to Exhibit
4.2(a) to the Registrant's Registration Statement on Form S-8 (File No. 33-58330)).
10.4 1992 Non-Qualified Stock Option Plan (Incorporated by reference to Exhibit 10.26 to
the Registrant's Registration Statement on Form S-4, as amended (File No.
33-54932)).
10.5 Stock Option Plan for Non-Employee Directors (Incorporated by reference to Exhibit
10.5 to the Registrant's Report on Form 10-K for the fiscal year ended March 31,
1996).
10.6 Alkermes, Inc. 1998 Equity Incentive Plan (Incorporated by reference to Exhibit
10.6 to the Registrant's Report on Form 10-K for the fiscal year ended March 31,
1999).
10.7 1999 Stock Option Plan, as amended (Incorporated by reference to Exhibit 10.1 to
the Registrant's Report on Form 10-Q for the quarter ended September 30, 2002).
10.8 2002 Restricted Stock Award Plan (Incorporated by reference to Exhibit 10.2 to the
Registrant's Report on Form 10-Q for the quarter ended September 30, 2002).
10.9 Lease, dated as of October 26, 2000, between FC88 Sidney, Inc. and Alkermes, Inc.
(Incorporated by reference to Exhibit 10.3 to the Registrant's Report on Form 10-Q
for the quarter ended December 31, 2000).
10.10 Lease, dated as of October 26, 2000, between Forest City 64 Sidney Street, Inc. and
Alkermes, Inc. (Incorporated by reference to Exhibit 10.4 to the Registrant's
Report on Form 10-Q for the quarter ended December 31, 2000).
10.11 Lease, dated July 26, 1993, between the Massachusetts Institute of Technology and
Alkermes, Inc. (Incorporated by reference to Exhibit 10.8 to the Registrant's
Report on Form 10-K for the fiscal year ended March 31, 1997).
10.11(a) First Amendment of Lease, dated June 9, 1997, between the Massachusetts Institute
of Technology and Alkermes, Inc. (Incorporated by reference to Exhibit 10.8(a) to
the Registrant's Report on Form 10-K for the fiscal year ended March 31, 1997).
10.12 Product Development Agreement, dated as of March 6, 1992, between Alkermes Clinical
Partners, L.P. and the Registrant (Incorporated by reference to Exhibit 10.21 to
the Registrant's Report on Form 10-K for the fiscal year ended March 31, 1992).
10.13 Purchase Agreement, dated as of March 6, 1992, by and among the Registrant and each
of the Limited Partners, from time to time, of the Partnership (Incorporated by
reference to Exhibit 10.22 to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1992).
10.14 Alkermes Clinical Partners, L.P. Agreement of Limited Partnership, dated as of
February 7, 1992 (Incorporated by reference to Exhibit 10.23 to the Registrant's
Report on Form 10-K for the fiscal year ended March 31, 1992).
10.14(a) Amendment No. 1 to Alkermes Clinical Partners, L.P. Agreement of Limited
Partnership, dated as of September 29, 1992 (Incorporated by reference to Exhibit
10.22(a) to the Registrant's Registration Statement on Form S-4, as amended (File
No. 33-54932)).
10.14(b) Amendment No. 2 to Alkermes Clinical Partners, L.P. Agreement of Limited
Partnership, dated as of March 30, 1993 (Incorporated by reference to Exhibit
10.22(b) to the Registrant's Registration Statement on Form S-3, as amended (File
No. 33-64964)).
10.15 Class A Note of Alkermes Development Corporation II, dated April 10, 1992, to
PaineWebber Development Corporation in the amount of $100.00 (Incorporated by
reference to Exhibit 10.24 to the Registrant's Report on Form 10-K for the fiscal
year ended March 31, 1992).
10.16 License Agreement, dated as of April 14, 1999, by and between Genentech, Inc. and
Alkermes Controlled Therapeutics, Inc. (Incorporated by reference to Exhibit 10.18
to the Registrant's Report on Form 10-K for the fiscal year ended March 31, 1999).**
10.17 Manufacture and Supply Agreement, entered into April 5, 2001, by and between
Alkermes, Inc. and Genentech, Inc. (Incorporated by reference to Exhibit 10.16 to
the Registrant's Report on Form 10-K for the fiscal year ended March 31, 2001).****
10.18 License Agreement, dated as of February 13, 1996, between Medisorb Technologies
International L.P. and Janssen Pharmaceutica International (United States)
(assigned to Alkermes Controlled Therapeutics Inc. II in March 1996) (Incorporated
by reference to Exhibit 10.19 to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 1996).***
10.19 License Agreement, dated as of February 21, 1996, between Medisorb Technologies
International L.P. and Janssen Pharmaceutica International (worldwide except the
United States) (assigned to Alkermes Controlled Therapeutics Inc. II in March 1996)
(Incorporated by reference to Exhibit 10.20 to the Registrant's Report on Form 10-K
for the fiscal year ended March 31, 1996).***
10.20 Manufacturing and Supply Agreement, dated August 6, 1997, by and among Alkermes
Controlled Therapeutics Inc. II, Janssen Pharmaceutica International and Janssen
Pharmaceutica Inc. (Incorporated by reference to Exhibit 10.19 to the Registrant's
Report on Form 10-K for the fiscal year ended March 31, 2002).+
10.20(a) Letter Agreement and Exhibits to Manufacturing and Supply Agreement, dated February
1, 2002, by and among Alkermes Controlled Therapeutics Inc. II, Janssen
Pharmaceutica International and Janssen Pharmaceutica Inc. (Incorporated by
reference to Exhibit 10.19(a) to the Registrant's Report on Form 10-K for the
fiscal year ended March 31, 2002).+
10.20(b) Addendum to Manufacturing and Supply Agreement, dated August 2001, by and among
Alkermes Controlled Therapeutics Inc. II, Janssen Pharmaceutica International and
Janssen Pharmaceutica Inc. (Incorporated by reference to Exhibit 10.19(b) to the
Registrant's Report on Form 10-K for the fiscal year ended March 31, 2002).+
10.21 Patent License Agreement, dated as of August 11, 1997, between Massachusetts
Institute of Technology and Advanced Inhalation Research, Inc., as amended
(Incorporated by reference to Exhibit 10.25 to the Registrant's Report on Form 10-K
for the fiscal year ended March 31, 1999).**
10.22 Letter Agreement, dated September 27, 1996, by and among Fleet National Bank,
Alkermes Controlled Therapeutics, Inc., Alkermes Controlled Therapeutic Inc. II and
the Registrant (Incorporated by reference to Exhibit 10.3 to the Registrant's
Report on Form 10-Q for the quarter ended September 30, 1996).
10.23(a) Second Loan Supplement and Modification Agreement, dated as of March 19, 1998, by
and among Fleet National Bank, Alkermes Controlled Therapeutics, Inc., Alkermes
Controlled Therapeutics Inc. II and the Registrant (Incorporated by reference to
Exhibit 10.29(b) to the Registrant's Report on Form 10-K for the fiscal year ended
March 31, 1998).
10.23(b) Third Loan Supplement and Modification Agreement, dated as of September 24, 1998,
by and among Fleet National Bank, Alkermes Controlled Therapeutics, Inc., Alkermes
Controlled Therapeutics Inc. II and the Registrant (Incorporated by reference to
Exhibit 10.1 to the Registrant's Report on Form 10-Q for the quarter ended
September 30, 1998).
10.24 Security Agreement, dated as of September 27, 1996, from the Registrant, Alkermes
Controlled Therapeutics, Inc. and Alkermes Controlled Therapeutic Inc. II to Fleet
National Bank (Incorporated by reference to Exhibit 10.4 to the Registrant's Report
on Form 10-Q for the quarter ended September 30, 1996).
10.25 Pledge Agreement, dated as of September 27, 1996, from the Registrant to Fleet
National Bank (Incorporated by reference to Exhibit 10.5 to the Registrant's Report
on Form 10-Q for the quarter ended September 30, 1996).
10.26 Mortgage and Security Agreement, dated as of September 27, 1996, from Alkermes
Controlled Therapeutics Inc. II to Fleet National Bank (Incorporated by reference
to Exhibit 10.6 to the Registrant's Report on Form 10-Q for the quarter ended
September 30, 1996).
10.27 Environmental Indemnity Agreement, dated as of September 27, 1996, from the
Registrant and Alkermes Controlled Therapeutics Inc. II to Fleet National Bank
(Incorporated by reference to Exhibit 10.7 to the Registrant's Report on Form 10-Q
for the quarter ended September 30, 1996).
10.28 Promissory Note, dated March 19, 1998, from the Registrant, Alkermes Controlled
Therapeutics, Inc. and Alkermes Controlled Therapeutics Inc. II to Fleet National
Bank (Incorporated by reference to Exhibit 10.38 to the Registrant's Report on Form
10-K for the fiscal year ended March 31, 1998).
10.29 Promissory Note, dated September 24, 1998, from the Registrant, Alkermes Controlled
Therapeutics, Inc. and Alkermes Controlled Therapeutics Inc. II to Fleet National
Bank ($11,000,000) (Incorporated by reference to Exhibit 10.2 to the Registrant's
Report on Form 10-Q for the quarter ended September 30, 1998).
10.30 Promissory Note, dated September 24, 1998, from the Registrant, Alkermes Controlled
Therapeutics, Inc. and Alkermes Controlled Therapeutics Inc. II to Fleet National
Bank ($9,000,000) (Incorporated by reference to Exhibit 10.3 to the Registrant's
Report on Form 10-Q for the quarter ended September 30, 1998).
10.31 Employment Agreement, entered into as of February 7, 1991, between Richard F. Pops
and the Registrant (Incorporated by reference to Exhibit 10.12 to the Registrant's
Registration Statement on Form S-1, as amended (File No. 33-40250)).
10.32 Change in Control Employment Agreement, dated as of December 19, 2000, between
Alkermes, Inc. and Richard F. Pops (Incorporated by reference to Exhibit 10.1 to
the Registrant's Report on Form 10-Q for the quarter ended December 31, 2000).
10.33 Change in Control Employment Agreement, dated as of December 19, 2000, between
Alkermes, Inc. and each of Raymond T. Bartus, J. Duncan Higgons, James L. Wright,
James M. Frates and Michael J. Landine and dated as of June 27, 2001, between
Alkermes, Inc. and David A. Broecker (Form of agreement incorporated by reference
to Exhibit 10.2 to Registrant's Report on Form 10-Q for the quarter ended December
31, 2000).
10.34 Employment Agreement, dated December 22, 2000 by and between David A. Broecker and
the Registrant (Incorporated by reference to Exhibit 10.32 to the Registrant's
Report on Form 10-K for the fiscal year ended March 31, 2001).
10.35 Stock Purchase Agreement, dated December 13, 2002, between Alkermes, Inc. and Eli
Lilly and Company (Incorporated by reference to Exhibit 4.2 to the Registrant's
Current Report on Form 8-K filed on December 16, 2002).
12.1 Statement regarding computation of ratio of earnings to fixed charges.*
21.1 Subsidiaries of Alkermes, Inc.*
23.1 Consent of Ballard Spahr Andrews & Ingersoll, LLP (included in Exhibit 5.1).*
23.2 Consent of Deloitte & Touche LLP.
24.1 Power of Attorney.*
25.1 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of State Street Bank and Trust Company.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other
Nominees.*
99.4 Form of Letter to Clients.*
99.5 Guidelines for Certification of Taxpayer Identification Number on Substitute Form
W-9.*
---------------
* Previously filed.
** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted August 19, 1999. Such provisions have been
filed separately with the Commission.
*** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 3, 1996. Such provisions have been
filed separately with the Commission.
**** Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 27, 2001. Such provisions have
been filed separately with the Commission.
+ Confidential status has been granted for certain portions thereof pursuant
to a Commission Order granted September 16, 2002. Such provisions have
been filed separately with the Commission.