As filed with the Securities and Exchange Commission on December 14, 2001.
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 N/A
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
597 Laurier Blvd., Mont St-Hillaire J3H 6C4
Quebec, Canada (Zip Code)
(Address of Principal Executive Offices)
AXCAN PHARMA INC.
AMENDED AND RESTATED STOCK OPTION PLAN
CT Corporation System Please address a copy of
all communications to:
111 8the Avenue, 13th Floor
New York, New York 10011 Wayne Shortridge
(Name and address of agent for service) Paul, Hastings, Janofsky & Walker LLP
Twenty-fourth Floor
(212) 849-8700 600 Peachtree Street
(Telephone number, including area Atlanta, Georgia 30308
code, of agent for service) Telephone: (404) 815-2400
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share (2) Price (2) Fee
- ----------------------------------------------------------------------------------------------------------
Common Stock 2,590,000 $ 13.33 $ 34,524,700 $ 8,252
------------ ---------- ------------- ---------
- ----------------------------------------------------------------------------------------------------------
(1) Consists of 2,590,000 shares Common Stock issuable upon the exercise
of options granted or to be granted pursuant to the Axcan Pharma Inc.
Stock Option Plan, as amended, and now known as the Amended and Restated
Stock Option Plan. Upon a stock split, stock dividend or similar
transaction in the future and during the effectiveness of this
Registration Statement involving Common Stock of the Registrant, the
number of shares registered shall be automatically increased to cover the
additional shares in accordance with Rule 416(a) under the Securities Act
of 1933, as amended (the "Securities Act").
(2) Estimated solely for the purpose of calculating the amount of the
registration fee in accordance with Rule 457(h)(1) under the Securities
Act. The offering price is calculated pursuant to Rule 457(c) based on the
average of the high and low sales prices ($13.33 per share) of the
Common Stock of the Registrant on The Nasdaq Stock Market's National
System on December 10, 2001.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual Information*
* Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the registration
statement in accordance with Rule 428 under the Securities Act of
1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated herein by reference:
(a) The Registrant's annual report on Form 40-F for the fiscal year ended
September 30, 2000 filed pursuant to the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") on January 19, 2001 (File No. 000-30860), and
amended by Form 40-F/A filed on March 28, 2001 (File No. 000-30860);
(b) The Registrant's current reports on Form 6-K since September 30, 2000;
(c) The description of the Registrant's shares of Common Stock which is
contained 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 United States Securities and Exchange Commission (the
"Commission") on June 23, 2000 and 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 Commission on June 27, 2000, and any amendment or
report filed for the purpose of updating such description;
(d) All documents subsequently filed with the Commission 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 to this Registration Statement 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 into this Registration Statement and to be a part hereof from the date
of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
The opinion as to the legality as to the legality of the Common Stock
registered hereunder was rendered by Leger Robic Richard, g.p. Francois
Painchaud is a Director and the Secretary of the Registrant and is a partner in
Leger Robic Richard, g.p.
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.
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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 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 Cdn $10,260,000 for directors and
Cdn $1,000,000 for 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 deductible of Cdn $1,000 per occurrence.
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.
Insofar as indemnification for liabilities under the Securities Act of
1933, as amended (the "Securities Act") 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 Commission such
indemnification is against public policy in the United States as expressed in
the Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
The exhibits filed as part of this Registration Statement are as follows:
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 Axcan Pharma Inc. Restated and Amended Stock Option
Plan.
5 Opinion of Leger Robic Richard, g.p. as to the
legality of the Common Stock registered hereunder.
23.1 Consent of Raymond, Chabot, Grant Thorton, relating
to the use of their report contained in Registrant's
Annual Report on Form 40-F for the fiscal year ended
September 30, 2000.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Leger Robic Richard as to the filing and
use of their opinion relating to the legality of the
securities. Such consent is contained in their
opinion filed as Exhibit 5 to this Registration
Statement.
24 Power of Attorney (contained on signature page of
Registration Statement).
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
II-2
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement 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.
(2) That, for purposes 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 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 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.
(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 provisions pursuant to which the
directors, officers or controlling persons may be indemnified by the registrant
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 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.
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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 the City of Montreal, Province of Quebec, Country of Canada, on
this 14th day of December, 2001.
AXCAN PHARMA INC.
By: /s/ Leon F. Gosselin
------------------------------------
Leon F. Gosselin
President and Chief Executive Officer
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the undersigned has signed this Registration Statement, solely in the
capacity of the duly authorized representative of Axcan Pharma Inc. in the
United States, in the City of Birmingham, Alabama, on this 14th of December,
2001.
AXCAN SCANDIPHARM, INC.
(Authorized U.S. Representative)
By: /s/ Davis W. Mims
----------------------------------
Davis W. Mims
S-1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leon F. Gosselin and Jean Vezina, jointly and
severally, his attorneys-in-fact, each with power of substitution for him in any
and all capacities, to sign any amendments to this Registration Statement, and
to file the same, with the exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission hereby ratifying and
confirming all that each of said attorneys-in-fact, or his substitute or
substitutes, may 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 below by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ Leon F. Gosselin President, Chief Executive Officer December 14, 2001
- --------------------------------------- and Director (principal executive
Leon F. Gosselin officer)
/s/David W. Mims
- ------------------------------------------- Executive Vice President and Chief December 14, 2001
David W. Mims Operating Officer and Director
/s/Francois Painchaud Secretary and Director December 14, 2001
- --------------------------------------------
Francois Painchaud
/s/ Jacques Gauthier Director December 14, 2001
- ---------------------------------------
Jacques Gauthier
/s/ Louis P. Lacasse Director December 14, 2001
- -------------------------------------------
Louis P. Lacasse
/s/ Colin R. Mallet Director December 14, 2001
- -------------------------------------------
Colin R. Mallet
/s/ Dr. Claude Sauriol Director December 14, 2001
- -------------------------------------------
Dr. Claude Sauriol
/s/ Jean Sauriol Director December 14, 2001
- -------------------------------------------
Jean Sauriol
/s/ Liza Page Nelson Director December 14, 2001
- -------------------------------------------
Liza Page Nelson
/s/ Michael M. Tarnow Director December 14, 2001
- ------------------------------------------
Michael M. Tarnow
/s/ Jean Vezina Vice President, Finance and Chief December 14, 2001
- ----------------------------------------- Financial Officer (principal financial
Jean Vezina officer and principal accounting
officer)
S-2
EXHIBIT INDEX
Exhibit Number Description of Exhibit
-------------- ----------------------
4.1 Axcan Pharma Inc. Restated and Amended Stock Option
Plan.
5 Opinion of Leger Robic Richard, g.p. as to the
legality of the Common Stock registered hereunder.
23.1 Consent of Raymond, Chabot, Grant Thorton, relating
to the use of their report contained in Registrant's
Annual Report on Form 40-F for the fiscal year ended
September 30, 2000.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Leger Robic Richard, g.p. as to the filing
and use of their opinion relating to the legality of
the securities. Such consent is contained in their
opinion filed as Exhibit 5 to this Registration
Statement.
24 Power of Attorney (contained on signature page of
Registration Statement).