-----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, IIq7RpzKHddEkppl1QcxJwUVAI7S5udDUOhUU0rzcUg6mr3zd0XeH6aMJFhm1Lfk ZFHiU1217g+/pwX1bns62w== 0001157523-08-005037.txt : 20080616 0001157523-08-005037.hdr.sgml : 20080616 20080616163054 ACCESSION NUMBER: 0001157523-08-005037 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20080616 DATE AS OF CHANGE: 20080616 EFFECTIVENESS DATE: 20080616 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ARIAD PHARMACEUTICALS INC CENTRAL INDEX KEY: 0000884731 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 223106987 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-151683 FILM NUMBER: 08900835 BUSINESS ADDRESS: STREET 1: 26 LANDSDOWNE ST CITY: CAMBRIDGE STATE: MA ZIP: 02139 BUSINESS PHONE: 6174940400 MAIL ADDRESS: STREET 1: 26 LANDSDOWNE CITY: CAMBRIDGE STATE: MA ZIP: 02139 S-8 1 a5710120.txt ARIAD PHARMACEUTICALS, INC. S-8 As filed with the Securities and Exchange Commission on June 16, 2008 REGISTRATION NO. 333- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------- ARIAD PHARMACEUTICALS, INC. (Exact name of Registrant as specified in its charter) Delaware 22-3106987 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 26 Landsdowne Street Cambridge, Massachusetts 02139 (Address of Principal Executive Offices) (Zip Code) AMENDED AND RESTATED ARIAD PHARMACEUTICALS, INC. 1997 EMPLOYEE STOCK PURCHASE PLAN (Full title of the plan) Harvey J. Berger, M.D. Chairman and Chief Executive Officer ARIAD Pharmaceuticals, Inc. 26 Landsdowne Street Cambridge, Massachusetts 02139-4234 (617) 494-0400 (Name and address of agent for service) (Telephone number, including area code, of agent for service) Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definition of "accelerated filer," "large accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act. Check one:
Large accelerated filer [ ] Accelerated filer [X] Non-accelerated filer [ ] (Do not check if smaller reporting company) Smaller reporting company [ ]
CALCULATION OF REGISTRATION FEE ===================================================================================================================== Proposed Proposed Title of Amount to be maximum maximum Amount of Securities to be Registered registered (1) offering price aggregate registration fee per share (2) offering price (2) - --------------------------------------------------------------------------------------------------------------------- Common Stock, $.001 par value (3) 500,000 $2.45 $1,225,000 $48.14 =====================================================================================================================
(1) The number of shares of common stock, par value $.001 per share ("Common Stock"), stated above consists of the number additional shares not previously registered which may be sold under the Amended and Restated ARIAD Pharmaceuticals, Inc. 1997 Employee Stock Purchase Plan (the "Plan"). The maximum number of shares which may be sold under the Plan is subject to adjustment in accordance with certain anti-dilution and other provisions of the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), 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 anti-dilution and other provisions. (2) This calculation is made solely for the purpose of determining the registration fee pursuant to the provisions of Rule 457(c) and (h) under the Securities Act as follows: in the case of shares of Common Stock to be issued under the Plan, for which the price of such shares is therefore unknown, the fee is calculated on the basis of the average of the high and low sale prices per share of the Common Stock on The NASDAQ Stock Market as of a date (June 12, 2008) within five business days prior to filing this Registration Statement. (3) Attached to each share of Common Stock is a right to purchase our Series A Preferred Stock, $.01 par value per share, which rights are not presently exercisable. EXPLANATORY NOTE In accordance with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission, the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 for offers of Common Stock pursuant to the Plan. This Registration Statement on Form S-8 hereby registers 500,000 additional shares of Common Stock for issuance under the Plan. An aggregate of up to 500,000 shares of Common Stock under the Plan were previously registered on September 26, 1997 (File No. 333-36597). 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. The following documents filed by the Registrant with the Securities and Exchange Commission are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 2007 (File No. 000-21696); (b) The portions of the Registrant's Definitive Proxy Statement on Schedule 14A filed on April 29, 2008 that are deemed "filed" with the Securities and Exchange Commission under the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No. 000-21696); (c) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2008 (File No. 000-21696); (d) The Registrant's Current Reports on Form 8-K filed on January 10, 2008 (Items 8.01 and 9.01), February 8, 2008 (Items 8.01 and 9.01), February 14, 2008 (Items 5.02 and 9.01), March 27, 2008 (Items 1.01, 2.03 and 9.01), April 15, 2008 (Items 8.01 and 9.01), May 7, 2008 (Items 8.01 and 9.01), May 20, 2008 (Items 8.01 and 9.01) and May 22, 2008 (Items 8.01 and 9.01) (File Nos. 000-21696); (e) The description of the Common Stock contained in the Registrant's Registration Statement on Form 10/A (File No. 000-21696) filed under the Exchange Act on June 25, 1993, including any amendment or report filed for the purpose of updating such description; and (f) The description of the Preferred Share Purchase Rights contained in the Registrant's Registration Statement on Form 8-A (File No. 000-21696) filed under the Exchange Act on June 19, 2000, including any amendment or report filed for the purpose of updating such description. All reports and other documents filed by the Registrant after the date hereof 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 securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such reports and documents. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the issuance of the shares of Common Stock registered under this Registration Statement has been passed upon for the Registrant by Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and members of that firm and their families own an aggregate of approximately 5,000 shares of Common Stock of the Registrant. 3 Item 6. Indemnification of Directors and Officers. Our certificate of incorporation and by-laws, as currently in effect, provide that we shall indemnify, to the fullest extent authorized by the Delaware General Corporation Law, each person who is involved in any litigation or other proceeding because such person is or was a director or officer of ARIAD Pharmaceuticals, Inc. or is or was serving as an officer or director of another entity at our request, against all expense, loss or liability reasonably incurred or suffered in connection therewith. Our certificate of incorporation provides that the right to indemnification includes the right to be paid expenses incurred in defending any proceeding in advance of its final disposition; provided, however, that such advance payment will only be made upon delivery to us of an undertaking, by or on behalf of the director or officer, to repay all amounts so advanced if it is ultimately determined that such director is not entitled to indemnification. If we do not pay a proper claim for indemnification in full after we receive a written claim for such indemnification, the certificate of incorporation and our by-laws authorize the claimant to bring an action against us and prescribe what constitutes a defense to such action. We have also entered into indemnification agreements with our current and former directors and certain of our officers and key employees as of or following November 2004. These agreements provide each indemnitee with more comprehensive indemnification and advancement rights than are provided by ARIAD in our certificate of incorporation and by-laws in certain circumstances and contain presumptions and procedures designed to ensure that the indemnification and advancement rights granted to each indemnitee in these agreements will be provided on a timely basis. Each agreement provides that our obligations under the agreement will continue during the time the indemnitee serves ARIAD and continues thereafter so long as the indemnitee is subject to any possible proceeding by reason of the indemnitee's service to ARIAD. Section 145 of the Delaware General Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorney's fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in a manner that he reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no reason to believe his or her conduct was unlawful. In a derivative action, (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action or suit was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability. Pursuant to Section 102(b)(7) of the Delaware General Corporation Law, Article 7 of our certificate of incorporation eliminates the liability of a director to us or our stockholders for monetary damages for such a breach of fiduciary duty as a director, except for liabilities arising: o from any breach of the director's duty of loyalty to us or our stockholders; o from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; o under Section 174 of the Delaware General Corporation Law; and o from any transaction from which the director derived an improper personal benefit. We carry insurance policies insuring our directors and officers against certain liabilities that they may incur in their capacity as directors and officers. 4 Any underwriting agreements that we may enter into will likely provide for the indemnification of us, our controlling persons, our directors and certain of our officers by the underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. Exhibit Number Description - -------------------------------------------------------------------------------- 4.1 Form of Common Stock Certificate (filed as Exhibit 4.5 to the Registrant's Registration Statement on Form S-3 (File No. 33-85166) filed with the Securities and Exchange Commission on October 14, 1994 and incorporated herein by reference). 4.2 Certificate of Incorporation, as amended (filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 (File No. 333-116996) filed with the Securities and Exchange Commission on June 30, 2004 and incorporated herein by reference). 4.3 Restated By-laws, as amended (filed as Exhibit 3.1 to the Registrant's Current Report on Form 8-K (File No. 000-21696) filed with the Securities and Exchange Commission on December 13, 2007 and incorporated herein by reference). 4.4 Rights Agreement, dated as of June 8, 2000, between the Registrant and State Street Bank and Trust Company, which includes the Form of Certificate of Designations in respect of the Series A Preferred Stock, as Exhibit A, the Form of Right Certificate as Exhibit B and the Summary of Rights to Purchase Series A Preferred Stock as Exhibit C (filed as Exhibit 1 to the Registrant's Registration Statement on Form 8-A (File No. 000-21696) with the Securities and Exchange Commission on June 19, 2000 and incorporated herein by reference). 5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., as to the legality of the shares being registered. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (filed with Exhibit 5.1). 24.1 Powers of Attorney (included on signature page). 99.1 Amended and Restated ARIAD Pharmaceuticals, Inc. 1997 Employee Stock Purchase Plan (filed as Appendix A to the Registrant's Definitive Proxy Statement on Schedule 14A (File No. 000-21696) filed with the Securities and Exchange Commission on April 29, 2008 and incorporated herein by reference). Item 9. Undertakings. (a) 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; 5 (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, represents 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 (A) Paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in 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 this 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. (b) 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 that is incorporated by reference in this 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. (c) 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 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 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 Act and will be governed by the final adjudication of such issue. 6 SIGNATURES The Registrant. 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 June 16, 2008. ARIAD PHARMACEUTICALS, INC. By: /s/ Harvey J. Berger, M.D. -------------------------------------- Harvey J. Berger, M.D. Chairman and Chief Executive Officer Each person whose signature appears below constitutes and appoints Harvey J. Berger and Edward M. Fitzgerald, and each of them, his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them, for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of ARIAD Pharmaceuticals, Inc., or any other registration statement for the same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Signature Title Date /s/ Harvey J. Berger, M.D. Chairman of the Board of Directors, Chief June 16, 2008 - -------------------------- Executive Officer and President (Principal Harvey J. Berger, M.D. Executive Officer) /s/ Sandford D. Smith Vice Chairman of the Board of Directors June 16, 2008 - ----------------------- Sandford D. Smith /s/ Edward M. Fitzgerald Senior Vice President, Chief Financial Officer June 16, 2008 - ------------------------- and Treasurer (Principal Financial Officer and Edward M. Fitzgerald Principal Accounting Officer) /s/ Michael D. Kishbauch Director June 16, 2008 - ----------------------- Michael D. Kishbauch /s/ Jay R. LaMarche Director June 16, 2008 - ----------------------- Jay R. LaMarche
7 Director - ----------------------- Athanase Lavidas, Ph.D. /s/ Peter J. Nelson Director June 16, 2008 - ----------------------- Peter J. Nelson /s/ Burton E. Sobel, M.D. Director June 16, 2008 - ----------------------- Burton E. Sobel, M.D. /s/ Elizabeth H.S. Wyatt Director June 16, 2008 - ---------------------- Elizabeth H.S. Wyatt
8 EXHIBIT INDEX Exhibit Number Description - -------------------------------------------------------------------------------- 4.1 Form of Common Stock Certificate (filed as Exhibit 4.5 to the Registrant's Registration Statement on Form S-3 (File No. 33-85166) filed with the Securities and Exchange Commission on October 14, 1994 and incorporated herein by reference). 4.2 Certificate of Incorporation, as amended (filed as Exhibit 4.2 to the Registrant's Registration Statement on Form S-8 (File No. 333-116996) filed with the Securities and Exchange Commission on June 30, 2004 and incorporated herein by reference). 4.3 Restated By-laws, as amended (filed as Exhibit 3.1 to the Registrant's Current Report on Form 8-K (File No. 000-21696) filed with the Securities and Exchange Commission on December 13, 2007 and incorporated herein by reference). 4.4 Rights Agreement, dated as of June 8, 2000, between the Registrant and State Street Bank and Trust Company, which includes the Form of Certificate of Designations in respect of the Series A Preferred Stock, as Exhibit A, the Form of Right Certificate as Exhibit B and the Summary of Rights to Purchase Series A Preferred Stock as Exhibit C (filed as Exhibit 1 to the Registrant's Registration Statement on Form 8-A (File No. 000-21696) with the Securities and Exchange Commission on June 19, 2000 and incorporated herein by reference). 5.1 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., as to the legality of the shares being registered. 23.1 Consent of Deloitte & Touche LLP. 23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (filed with Exhibit 5.1). 24.1 Powers of Attorney (included on signature page). 99.1 Amended and Restated ARIAD Pharmaceuticals, Inc. 1997 Employee Stock Purchase Plan (filed as Appendix A to the Registrant's Definitive Proxy Statement on Schedule 14A (File No. 000-21696) filed with the Securities and Exchange Commission on April 29, 2008 and incorporated herein by reference). 9 EX-5.1 2 a5710120ex5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 MINTZ LEVIN One Financial Center Boston, MA 02111 617-542-6000 617-542-2241 fax www.mintz.com June 16, 2008 ARIAD Pharmaceuticals, Inc. 26 Landsdowne Street Cambridge, Massachusetts 02139 Gentlemen: We have acted as counsel to ARIAD Pharmaceuticals, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement"), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as amended, of a total of 500,000 shares (the "Shares") of its common stock, $.001 par value per share (the "Common Stock"). This opinion is being rendered in connection with the filing of the Registration Statement. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to them in the Registration Statement. In connection with this opinion, we have examined the Company's Certificate of Incorporation, as amended, and Restated By-Laws, both as currently in effect; such other records of the corporate proceedings of the Company and certificates of the Company's officers as we have deemed relevant; and the Registration Statement and the exhibits thereto. In our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies. Based upon the foregoing, we are of the opinion that the Shares, when sold, will have been duly and validly issued, fully paid and non-assessable shares of the Common Stock. Our opinion is limited to applicable provisions of the Delaware Constitution, the General Corporation Laws of the State of Delaware and the reported judicial decisions interpreting those laws, and we express no opinion with respect to the laws of any other jurisdiction. No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any foreign jurisdiction. We understand that you wish to file this opinion as an exhibit to the Registration Statement, and we hereby consent thereto. Very truly yours, /s/ Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. BOSTON | WASHINGTON | NEW YORK | STAMFORD | LOS ANGELES | PALO ALTO | SAN DIEGO | LONDON EX-23.1 3 a5710120ex23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated March 14, 2008, relating to the consolidated financial statements of ARIAD Pharmaceuticals, Inc. and subsidiaries (which report expresses an unqualified opinion and includes an explanatory paragraph regarding the adoption of Statement of Financial Accounting Standards No. 123R, Share-Based Payment, effective January 1, 2006) and the effectiveness of ARIAD Pharmaceuticals, Inc.'s and subsidiaries' internal control over financial reporting appearing in the Annual Report on Form 10-K of ARIAD Pharmaceuticals, Inc. for the year ended December 31, 2007. /S/ DELOITTE & TOUCHE LLP Boston, Massachusetts June 12, 2008 -----END PRIVACY-ENHANCED MESSAGE-----