-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, HgcGPjJBE2Kbwyc5bRzPAgmbpl7KNj/HBhmcycSDs3PGyTW2PkgSxlKO0lh4kbFD NiRQ1UTyKfgVdXKU3aejfA== /in/edgar/work/20000831/0000950135-00-004200/0000950135-00-004200.txt : 20000922 0000950135-00-004200.hdr.sgml : 20000922 ACCESSION NUMBER: 0000950135-00-004200 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000831 EFFECTIVENESS DATE: 20000831 FILER: COMPANY DATA: COMPANY CONFORMED NAME: MEDICINES CO/ MA CENTRAL INDEX KEY: 0001113481 STANDARD INDUSTRIAL CLASSIFICATION: [2834 ] IRS NUMBER: 043324394 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-44884 FILM NUMBER: 714490 BUSINESS ADDRESS: STREET 1: ONE CAMBRIDGE CTR CITY: CAMBRIDGE STATE: MA ZIP: 02142 BUSINESS PHONE: 6172259099 S-8 1 b36633mcs-8.txt THE MEDICINES COMPANY 1 As filed with the Securities and Exchange Commission on August 31, 2000 Registration No. 333-____ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 THE MEDICINES COMPANY (Exact Name of Registrant as Specified in Its Charter) DELAWARE 04-3324394 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) ONE CAMBRIDGE CENTER, CAMBRIDGE, MASSACHUSETTS 02142 (Address of Principal Executive Offices) (Zip Code) 1998 STOCK INCENTIVE PLAN 2000 OUTSIDE DIRECTOR STOCK OPTION PLAN 2000 EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plan) CLIVE A. MEANWELL CHIEF EXECUTIVE OFFICER THE MEDICINES COMPANY ONE CAMBRIDGE CENTER CAMBRIDGE, MASSACHUSETTS 02142 (Name and Address of Agent for Service) (617) 225-9099 (Telephone number, Including Area Code, of Agent For Service) CALCULATION OF REGISTRATION FEE
================================================================================================================ Title of Each Class Proposed Maximum Proposed Maximum of Securities to Offering Price Per Aggregate Offering Amount of be Registered Amount to be Registered Share Price Registration Fee - ---------------------------------------------------------------------------------------------------------------- Common Stock, $0.001 par value 4,873,759 shares $18.938(1) $92,299,248(1) $24,367(1) per share ================================================================================================================
(1) 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 Registrant's Common Stock as reported on the Nasdaq National Market on August 30, 2000. 2 PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS ITEM 1. PLAN INFORMATION. The information required by Part I is included in documents sent or given to participants in the 1998 Stock Incentive Plan, the 2000 Outside Director Stock Option Plan and the 2000 Employee Stock Purchase Plan of The Medicines Company pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The registrant is subject to the informational and reporting requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). The following documents, which are on file with the Commission, are incorporated in this registration statement by reference: (a) The registrant's latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the registrant's latest fiscal year for which such statements have been filed. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above. (c) The description of the Common Stock of the registrant, $0.01 par value per share (the "Common Stock"), contained in the registrant's registration statement on Form 8-A and filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all shares of Common Stock offered hereby have been sold or which deregisters all shares of Common Stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. -2- 3 ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Hale and Dorr LLP has opined as to the legality of the securities being offered by this registration statement. Partners of Hale and Dorr LLP beneficially own an aggregate of 23,634 shares of Common Stock and a warrant to purchase an aggregate of 1,554 shares of Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Third Amended and Restated Certificate of Incorporation, as amended to date (the "Charter") provides that, except to the extent prohibited by the Delaware General Corporation Law (the "DGCL"), the Registrant's directors shall not be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as directors of the Registrant. Under the DGCL, the directors have a fiduciary duty to the Registrant which is not eliminated by this provision of the Charter and, in appropriate circumstances, equitable remedies such as injunctive or other forms of nonmonetary relief will remain available. In addition, each director will continue to be subject to liability under the DGCL for breach of the director's duty of loyalty to the Registrant, for acts or omissions which are found by a court of competent jurisdiction to be not in good faith or involving intentional misconduct, for knowing violations of law, for actions leading to improper personal benefit to the director, and for payment of dividends or approval of stock repurchases or redemptions that are prohibited by DGCL. This provision also does not affect the directors' responsibilities under any other laws, such as the Federal securities laws or state or Federal environmental laws. The Registrant has obtained liability insurance for its officers and directors. Section 145 of the DGCL empowers any corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of their capacity or status as directors and officers, provided that this provision shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) arising under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. The DGCL provides further that the indemnification permitted thereunder shall not be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation's bylaws, any agreement, a vote of stockholders or otherwise. The Charter eliminates the personal liability of directors to the fullest extent permitted by Section 102(b)(7) of the DGCL and provides that the Registrant shall fully 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 such person is or was a director or officer of the Registrant, or is or was serving at the request of the Registrant as a director or officer of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding. At present, there is no pending litigation or proceeding involving any director, officer, employee or agent as to which indemnification will be required or permitted under the Charter. The Registrant is not aware of any threatened litigation or proceeding that may result in a claim for such indemnification. -3- 4 Article EIGHTH of the Registrant's Charter provides that no director of the registrant shall be personally liable for any monetary damages for any breach of fiduciary duty as a director, except to the extent that the Delaware General Corporation Law statute prohibits the elimination or limitation of liability of directors for breach of fiduciary duty. Article NINTH of the Registrant's Charter provides that a director or officer of the registrant (a) shall be indemnified by the registrant against all expenses (including attorneys' fees), judgments, fines and amounts paid in settlement incurred in connection with any litigation or other legal proceeding (other than an action by or in the right of the registrant) brought against him by virtue of his position as a director or officer of the registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful and (b) shall be indemnified by the registrant against all expenses (including attorneys' fees) and amounts paid in settlement incurred in connection with any action by or in the right of the registrant brought against him by virtue of his position as a director or officer of the registrant if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the registrant, except that no indemnification shall be made with respect to any matter as to which such person shall have been adjudged to be liable to the registrant, unless a court determines that, despite such adjudication but in view of all of the circumstances, he is entitled to indemnification of such expenses. Notwithstanding the foregoing, to the extent that a director or officer has been successful, on the merits or otherwise, including, without limitation, the dismissal of an action without prejudice, he is required to be indemnified by the registrant against all expenses (including attorneys' fees) incurred in connection therewith. Expenses shall be advanced to a director or officer at his request, provided that he undertakes to repay the amount advanced if it is ultimately determined that he is not entitled to indemnification for such expenses. Indemnification is required to be made unless the registrant determines that the applicable standard of conduct required for indemnification has not been met. In the event of a determination by the registrant that the director or officer did not meet the applicable standard of conduct required for indemnification, or if the registrant fails to make an indemnification payment within 60 days after such payment is claimed by such person, such person is permitted to petition the court to make an independent determination as to whether such person is entitled to indemnification. As a condition precedent to the right of indemnification, the director or officer must give the registrant notice of the action for which indemnity is sought and the registrant has the right to participate in such action or assume the defense thereof. Article NINTH of the Registrant's Charter further provides that the indemnification provided therein is not exclusive, and provides that in the event that the Delaware General Corporation Law statute is amended to expand the indemnification permitted to directors or officers the registrant must indemnify those persons to the full extent permitted by such law as so amended. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. -4- 5 ITEM 9. UNDERTAKINGS. 1. 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; (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 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (i) and (ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. 2. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 3. 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 -5- 6 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. [Rest of Page Intentionally Left Blank.] -6- 7 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 Cambridge, Massachusetts, on this 30th day of August, 2000. THE MEDICINES COMPANY By: /s/ Peyton J. Marshall ---------------------------- Peyton J. Marshall Chief Financial Officer POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of The Medicines Company, Inc., hereby severally constitute and appoint Clive A. Meanwell and Peyton J. Marshall, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable The Medicines Company, Inc. to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated. SIGNATURE TITLE DATE /s/ Clive A. Meanwell President, Chief Executive August 30, 2000 - ----------------------- Officer and Director (Principal Clive A. Meanwell Executive Officer) /s/ Peyton J. Marshall Chief Financial Officer August 30, 2000 - ----------------------- (Principal Financial and Peyton J. Marshall Accounting Officer) Director August __, 2000 - ----------------------- Dennis B. Gillings Director August __, 2000 - ----------------------- Anders D. Hove -7- 8 - ------------------------ Director August __, 2000 M. Fazle Husain /s/ T. Scott Johnson Director August 30, 2000 - ------------------------ T. Scott Johnson /s/ Armin M. Kessler Director August 30, 2000 - ------------------------ Armin M. Kessler /s/ James E. Thomas Director August 30, 2000 - ------------------------ James E. Thomas /s/ Robert Yedid Director August __, 2000 - ------------------------ Robert Yedid Director August __, 2000 - ------------------------ Leonard Bell -8- 9 INDEX TO EXHIBITS NUMBER DESCRIPTION 3.1(1) Third Amended and Restated Certificate of Incorporation of the Registrant 3.2(1) Amended and Restated By-Laws of the Registrant 4.1(1) Specimen stock certificate of common stock of the Registrant 5.1 Opinion of Hale and Dorr LLP, counsel to the Registrant 23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1) 23.2 Consent of Ernst & Young LLP 24.1 Power of attorney (included in the signature pages of this registration statement) - ------------ (1) Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant's Registration Statement on Form S-1, as amended (File No. 333-37404) and incorporated herein by reference. -9- EX-5.1 2 b36633mcex5-1.txt OPINION AND CONSENT OF HALE AND DORR LLP 1 Exhibit 5.1 [HALE AND DORR LLP LETTERHEAD] August 30, 2000 The Medicines Company One Cambridge Center Cambridge, Massachusetts 02142 Re: 1998 Stock Incentive Plan 2000 Director Stock Option Plan 2000 Employee Stock Purchase Plan --------------------------------- Ladies and Gentlemen: We have assisted in the preparation of a Registration Statement on Form S-8 (the "Registration Statement") to be filed with the Securities and Exchange Commission relating to an aggregate of 4,648,759 shares of common stock, $0.001 par value per share (the "Shares"), of The Medicines Company, a Delaware corporation (the "Company"), issuable under the Company's 1998 Stock Incentive Plan, 2000 Director Stock Option Plan and 2000 Employee Stock Purchase Plan (collectively, the "Plans"). We have examined the Certificate of Incorporation of the Company and the By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion. In our examination of the foregoing documents, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies, and the authenticity of the originals of any such documents. We assume that the appropriate action will be taken, prior the offer and sale of the shares in accordance with the Plans, to register and qualify the shares for sale under all applicable state securities or "blue sky" laws. We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts, the Delaware General Corporation Law statute and the federal laws of the United States of America. It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect. 2 The Medicines Company August 30, 2000 Page 2 Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. Based on the foregoing, we are of the opinion that the Company has duly authorized for issuance the Shares covered by the Registration Statement to be issued under the Plans, as described in the Registration Statement, and such Shares, when issued in accordance with the terms of the Plans, will be legally issued, fully paid and nonassessable. We hereby consent to the filing of this opinion with the Securities and Exchange Commission in connection with the Registration Statement. Very truly yours, /s/ Hale and Dorr LLP --------------------------- HALE AND DORR LLP EX-23.2 3 b36633mcex23-2.txt CONSENT OF ERNST AND YOUNG LLP 1 Exhibit 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement (Form S-*) pertaining to the 1998 Stock Incentive Plan, 2000 Outside Director Stock Option Plan and 2000 Employee Stock Purchase Plan of The Medicines Company, of our report dated April 17, 2000, except for the first and second paragraphs of Note 14, as to which the date is may 17, 2000 and the third paragraph of Note 14, as to which the date is August 4, 2000, with respect to the consolidated financial statements of The Medicines Company included in the Registration Statement on Form S-1 (File No. 333-37404), filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Boston, Massachusetts August 25, 2000 -----END PRIVACY-ENHANCED MESSAGE-----