As filed with the Securities and Exchange Commission on March 24, 2006
| Registration No. 333- |
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
AXCAN PHARMA INC.
(Exact Name of Registrant as Specified in Its Charter)
Canada
(State or Other Jurisdiction of
Incorporation or Organization)
5122
(Primary Standard Industrial Classification Code Number (if applicable))
N/A
(I.R.S. Employer Identification Number)
597 Laurier Blvd., Mont St. Hilaire, Quebec, Canada J3H 6C4 (450) 467-5138
(Address of Principal Executive Offices)
CT Corporation System, 111 8th Avenue, 15th Floor, NY, NY 10011 (212) 894-8700
(Name, Address (including zip code) and telephone number (including area code) of agent for service in the United States)
AXCAN PHARMA INC.
2006 Stock Incentive Plan
(Full title of the Plan)
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share (3) | Proposed Maximum Aggregate Offering Price (3) | Amount of Registration Fee (3) |
Common Stock | 4,550,000(2) | $13.37 | $60,833,500 | $6,509.19 |
| (1) | Upon a stock split, stock dividend or similar transaction during the effectiveness of this Registration Statement, the number of shares registered shall be automatically |
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increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933.
(2) | Consists of (i) 2,250,000 shares of the Registrant’s common stock to be sold pursuant to the Axcan Pharma Inc. 2006 Stock Purchase Plan (the “ESPP Sub-plan”), which is a sub-plan under the Axcan Pharma Inc. 2006 Stock Incentive Plan (the “Plan”) and (ii) 2,300,000 shares of the Registrant’s common stock to be issued under the Plan (other than the shares to be purchased pursuant to the ESPP Sub-plan) |
(3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) under the Securities Act of 1933, based on the average of the high |
($13.49) and low ($13.25) selling prices of the Common Stock as reported on The NASDAQ National Market on March 23, 2006.
PART I
INFORMATION REQUIRED IN THE SECTION
10(a) PROSPECTUS
Item 1. | Plan Information* |
Item 2. | Registrant Information and Employee Plan Annual Information* |
*As permitted by Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement omits the information specified in Part I of Form S-8. The documents containing the information specified in Part I will be delivered to the participants in the plans covered by the Registration Statement as required by Rule 428(b). These documents and the documents incorporated herein by reference pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. Such documents are not filed with the Securities and Exchange Commission (the “SEC”) as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424(b) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. | Incorporation of Documents by Reference |
| The following documents are incorporated by reference in this Registration Statement: |
(a) The Registrant’s Annual Report on Form 40-F for the fiscal year ended September 30, 2005 (SEC File No. 000-30860) and filed December 28, 2006, as amended by the Company’s Form 40-F/A filing with the SEC on January 6, 2006;
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(b) The Registrant’s current reports (SEC File No. 000-30860) on Form 6-K since September 30, 2005;
(c) The description of the Registrant's shares of Common Stock which is set forth under the heading “Description of Share Capital” in the Registrant's registration statement on
Amendment No. 1 to Form F-10 (Registration No. 333-12068) filed with the SEC on June 23, 2000, and which was also incorporated by reference in the Registrant's registration statement on Amendment No. 2 to Form 8-A (Registration No. (001-15927) filed with the SEC on June 27, 2000, and any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant 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 a 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 contained in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Item 4. | Descriptions of Securities |
| Not applicable. |
Item 5. | Interests of Named Experts and Counsel |
| Not Applicable. |
Item 6. | Indemnification of Directors and Officers |
Under the Canada Business Corporations Act, the Registrant may indemnify a present or former director or officer or a person who acts or acted at the Registrant's request as a director or officer of another corporation of which the Registrant is or was a shareholder or creditor and his heirs and legal representatives against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been such a director or officer if the director or officer acted honestly and in good faith with a view to the best interests of the Registrant, and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, had reasonable grounds for believing his conduct was lawful. Such indemnification may be made in connection with a derivative action only with court approval. A director or officer is entitled to indemnification from the Registrant as a matter of right if he was substantially successful on the merits and fulfilled the conditions set forth above.
In accordance with the Canada Business Corporations Act, the by-laws of the Registrant provide that the Registrant shall indemnify a director or officer, a former director or officer, or a
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person who acts or acted at the Registrant’s request as a director or officer of another corporation of which the Registrant is or was a shareholder or creditor and his heirs and legal representative against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of such body if he acted honestly and in good faith with a view to the best interests of the Registrant, and in the case of a criminal action or administrative action or proceeding that is enforced by monetary penalty, he had reasonable grounds for believing that his conduct was lawful.
The Registrant maintains directors' and officers' civil liability insurance with an aggregate policy limit of U.S. $ 25,000,000 for directors and officers per policy year. Under this insurance coverage, the Registrant would be reimbursed for indemnity payments made on behalf of its directors and officers subject to a self-insured retention (deductible) of U.S. $500,000 per claim. Individual directors and officers would also be reimbursed for losses arising during the performance of their duties for which they are not indemnified by the
Registrant.
Item 7. | Exemption from Registration Claimed |
| Not Applicable. |
Item 8. | Exhibits |
For a list of all exhibits filed or included as part of this Registration Statement, see "Index to Exhibits" at the end of this Registration Statement.
Item 9. | Undertakings |
The 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 would not exceed that which was registered) and any deviation from the low or high end of the 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 |
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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
| (A) | Paragraphs (1)(i) and (1)(ii) of this section 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 SEC 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; and |
| (B) | Paragraphs (1)(i), (1)(ii) and (1)(iii) of this section do not apply if the registration statement is on Form S-3 or Form F-3 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 SEC 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, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
| (C) | Provided further, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is for an offering of asset-backed securities on Form S-1 or Form S-3, and the information required to be included in a post-effective amendment is provided pursuant to Item 1100(c) of Regulation AB. |
| (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. |
| (4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) If the Registrant is relying on Rule 430B (§230.430B of this chapter):
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(A) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the Registration Statement as of the date the filed prospectus was deemed part of and included in the Registration Statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date;
or
(ii) If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
| (5) | That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities: |
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The Registrant undertakes that in a primary offering of securities of the Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the Registrant or used or referred to by the Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and
(iv) Any other communication that is an offer in the offering made by the Registrant to the purchaser.
The 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 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to 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.
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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the United States, in the City of Birmingham, Alabama, on this 24th day of March, 2006
| Axcan Pharma Inc. |
| By: | /s/ Martha Donze |
| ||
| Martha Donze |
| |||
| Vice President, Corporate Administration | ||||
| (Duly Authorized Representative) |
| |||
POWER OF ATTORNEY
We, the undersigned directors and officers of the registrant, hereby severally constitute and appoint Martha Donze, our true and lawful attorney and agent, to do any and all things in our names in the capacities indicated below which said person may deem necessary or advisable to enable the Registrant to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with the registration statement on Form S-8 relating to the offering of the registrant's Common Stock, including specifically, but not limited to, power and authority to sign for us in our names in the capacities indicated below the Registration Statement and any and all amendments (including post-effective amendments) thereto; and we hereby approve, ratify and confirm all that said person shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date |
/s/ Frank A.G.M. Verwiel Frank A.G.M. Verwiel |
Chief Executive Officer and a Director (Principal Executive Officer) |
March 8, 2006 |
/s/ Steve Gannon Steve Gannon |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
March 20, 2006 |
/s/ Jean Vézina Jean Vézina |
Vice President, Finance (Principal Accounting Officer) |
March 8, 2006 |
/s/ Dr. E. Rolland Dickson Dr. E. Rolland Dickson |
Director |
March 1, 2006 |
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/s/ Jacques Gauthier Jacques Gauthier |
Director |
March 2, 2006 |
/s/ Léon F. Gosselin Leon F. Gosselin |
Director |
March 6, 2006 |
_______________ Louis P. Lacasse |
Director |
|
/s/ Colin R. Mallet Colin R. Mallet |
Director |
March 3, 2006 |
________________ François Painchaud |
Secretary and Director |
|
/s/ Marie C. Ritchie Marie C. Ritchie |
Director |
March 6, 2006 |
________________ Dr. Claude Sauriol |
Director |
|
s/ Michael M. Tarnow Michael M. Tarnow |
Director |
March 2, 2006 |
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INDEX TO EXHIBITS
Exhibit | Description |
4.1 | Axcan Pharma Inc. 2006 Stock Incentive Plan |
5 | Opinion of Blakes Cassels & Graydon LLP as to the legality of the Common Stock being registered |
23.1 | Consent of Blakes Cassels & Graydon LLP (included in Exhibit 5) |
23.2 | Consent of Raymond Chabot Grant Thorton LLP |
24 | Power of Attorney (contained in the signature page to this Registration Statement) |
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