ami_s8.htm
UNITED
STATES
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
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
04-2742593
(I.R.S.
Employer
Identification
No.)
|
125
CambridgePark Drive, 6th
Floor
Cambridge, Massachusetts
|
02140
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Advanced
Magnetics, Inc. 2006 Employee Stock Purchase Plan
(Full
Title of the Plan)
Brian
J.G. Pereira, MD
Chief
Executive Officer and President
Advanced
Magnetics, Inc.
125
CambridgePark Drive, 6th
Floor
Cambridge,
Massachusetts 02140
|
COPY
TO:
Miguel
J. Vega, Esq.
Sullivan
& Worcester LLP
One
Post Office Square
Boston,
Massachusetts 02109
|
(Name,
and Address of Agent For Service)
(617)
498-3300
|
(617)
338-2448
|
(Telephone
Number, Including Area Code, of Agent For Service)
CALCULATION
OF REGISTRATION FEE
Title
of Each Class
of
Securities
to
be Registered
|
Amount
to be
Registered(1)
|
Proposed
Maximum
Offering
Price
Per
Share(2)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
|
|
|
|
Common
Stock, $0.01 par value per share
|
100,000
|
$64.40
|
$6,440,000
|
$198.00
|
(1)
The
maximum number of shares which may be sold upon the exercise of options granted
under the Advanced Magnetics, Inc. 2006 Employee Stock Purchase Plan is subject
to adjustment in accordance with certain structural anti-dilution and other
provisions of the Advanced Magnetics, Inc. 2006 Employee Stock Purchase 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)
The
proposed maximum offering price per share and the proposed maximum aggregate
offering price have been estimated solely for the purpose of calculating the
amount of the registration fee in accordance
with
Rules 457(c) and 457(h) under the Securities Act of 1933 on the basis of the
average of the high and low prices of the Common Stock on the NASDAQ on May
24,
2007.
PART
II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
Advanced
Magnetics, Inc., (the “Company”) hereby incorporates by reference into this
registration statement the following additional documents, as of their
respective dates, which have been previously filed by the Company with the
Securities and Exchange Commission:
|
(a)
|
The
Company’s Annual Report on Form 10-K for the fiscal year ended September
30, 2005 filed on December 14, 2005 pursuant to Section 13 of the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”);
|
|
(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 Registrant’s Annual Report
referred to in (a) above; and
|
|
(c)
|
The
description of the Company’s common stock contained in the registration
statement on Form 8-A dated June 26, 2006 (File No. 0-14732), including
all amendments or reports filed for the purpose of updating such
description.
|
All
documents subsequently filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the
filing of a post-effective amendment which indicates that all securities offered
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 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 purposes
of
this registration statement to the extent that a statement herein, or in any
subsequently filed document which also is or is deemed to be incorporated by
reference, 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.
Item
5. Interest of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Named 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 present or former
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 whether or not the registrant would have the power to indemnify
such persons under the General Corporation Law of Delaware. 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 all of its directors and certain of its officers.
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 Claims.
Not
applicable.
Item
8. Exhibits.
EXHIBIT
INDEX
EXHIBIT
NO.
|
DESCRIPTION
|
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, 2006, File No.
0-14732).
|
|
|
4.2
|
Amended
and Restated By-Laws of the registrant, as amended (incorporated
by
reference to Exhibit 3.2 to the registrant's Current Report on Form
8-K,
dated May 14, 2007, 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 Sullivan & Worcester
LLP.
|
10
|
2006
Employee Stock Purchase Plan (incorporated by reference to Appendix
A to
the registrant's definitive proxy statement, filed December 19, 2006,
File
No. 0-14732).
|
|
|
23.1
|
Consent
of Sullivan & Worcester LLP (contained in the opinion of Sullivan
& Worcester LLP filed herewith as Exhibit 5.1).
|
|
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*23.2
|
Consent
of Independent Registered Public Accounting Firm – PricewaterhouseCoopers
LLP (Advanced Magnetics, Inc.).
|
|
|
24
|
Powers
of Attorney (included in the signature page to 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 percent 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 the registrant,
as amended, indemnification agreements entered into between the 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, the Company 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, Commonwealth of Massachusetts, on the 25th day of
May,
2007.
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ADVANCED
MAGNETICS, INC.
|
|
|
|
|
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By: /s/
Brian J.G. Pereira, MD
|
|
Name: Brian
J.G.
Pereira, MD
|
|
Title: Chief
Executive Officer and
President
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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. The undersigned officers and directors of the
Company hereby severally constitute and appoint Brian J.G. Pereira, MD and
Joseph L. Farmer, and each of them acting singly, our true and lawful attorneys
to sign for us and in our names in the capacities indicated below any and all
amendments or supplements, whether pre-effective or post-effective, to this
registration statement on Form S-8 and to file the same, with exhibits thereto
and other documents in connection therewith, with the Commission, granting
unto
each of said attorneys, acting singly, full power and authority to do and
perform each and every act and thing requisite or necessary to be done in and
about the premises, as fully to all intents and purposes as he or she might
or
could do in person, hereby ratifying and confirming our signatures to said
amendments to this registration statement signed by our said attorneys and
all
else that said attorneys may lawfully do and cause to be done by virtue
hereof.
Signature
|
Title
|
Date
|
/s/
Brian J.G. Pereira, MD
Brian
J.G. Pereira
|
Chief
Executive Officer President and Director
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May
25, 2007
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/s/
David A. Arkowitz
David
A. Arkowitz
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Chief
Financial Officer and Chief Business Officer
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May
25, 2007
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/s/
Dr. Michael D. Loberg
Dr.
Michael D. Loberg
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Director
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May
25, 2007
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/s/
Michael Narachi
Michael
Narachi
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Director
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May
25, 2007
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/s/
Davey S. Scoon
Davey
S. Scoon
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Director
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May
25, 2007
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/s/
Mark Skaletsky
Mark
Skaletsky
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Director
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May
25, 2007
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/s/
Ron Zwanziger
Ron
Zwanziger
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Director
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May
25, 2007
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