AMRI Albany Molecular Research, Inc.

As filed with the Securities and Exchange Commission on June 17, 2015

Registration No. ______

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

Albany Molecular Research, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

(State or Other Jurisdiction of Incorporation or Organization)

 

14-1742717

(I.R.S. Employer Identification No.)

 

Albany Molecular Research, Inc.

26 Corporate Circle

Albany, New York 12203

(Address of Principal Executive Offices) (Zip Code)

 

 

Third Amended 1998 Employee Stock Purchase Plan.

Third Amended 2008 Stock Option and Incentive Plan.

(Full Title of the Plan)

 

 

William S. Marth

Chief Executive Officer

Albany Molecular Research, Inc.

26 Corporate Circle

Albany, New York 12203

(Name and Address of Agent for Service)

 

(518) 512-2000

Telephone Number, Including Area Code, of Agent For Service.

 

 

Copies to:

 

John Mutkoski, Esq.	Lori Henderson, Esq.
Goodwin Procter LLP	Albany Molecular Research, Inc.
53 State Street	26 Corporate Circle
Boston, MA 02109	Albany, NY 12203
Telephone: (617) 570-1000	Telephone: (518) 512-2000

 

 

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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer   ¨		Accelerated filer   x
Non-accelerated filer   ¨		Smaller reporting company   ¨

 

(Do not check if a smaller reporting company)

 

  

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities To Be Registered		Amount To Be Registered(1)(2)				Proposed Maximum Offering Price Per Share (3)				Proposed Maximum Aggregate Offering Price (3)				Amount of Registration Fee(3)
Third Amended 1998 Employee Stock Purchase Plan Common Stock, par value $0.01 per share (4)			200,000			$	19.48			$	3,896,000			$	452.72
Third Amended 2008 Stock Option and Incentive Plan Common Stock, par value $0.01 per share (4)			2,000,000			$	19.48			$	38,960,000			$	4,527.15
Total			2,200,000				--			$	42,856,000			$	4,979.87

 

(1)

Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of common stock.

 

(2)

This registration statement registers an additional 200,000 shares issuable under the 1998 Employee Stock Purchase Plan and an additional 2,000,000 shares issuable under the 2008 Stock Option and Incentive Plan. We have previously registered 600,000 shares issuable under the 1998 Employee Stock Purchase Plan under Registration No. 333-80477; 400,000 shares issuable under the 1998 Employee Stock Purchase Plan, as amended under Registration No. 333-174973; 400,000 shares issuable under the 1998 Employee Stock Purchase Plan, as amended under Registration No. 333-189219; 1,200,000 shares issuable under the 2008 Stock Option and Incentive Plan under Registration No. 333-152169; 2,500,000 shares issuable under the 2008 Employee Stock Option and Incentive Plan, as amended under Registration No. 333-174973; and 2,000,000 shares issuable under the 2008 Employee Stock Option and Incentive Plan, as amended under Registration No. 333-189219.

 

(3)

Estimated solely for the purpose of calculating the registration fee. In accordance with Rules 457(c) and 457(h), the proposed maximum offering price per share, the proposed maximum aggregate offering price, and the registration fee shown has been computed based upon the average of the high and low sales price of the Company’s Common Stock on June 15, 2015, $19.48, as reported on the Nasdaq Global Market with respect to securities for which options have not been granted.

 

(4)

This registration statement also relates to the rights (the “Rights”) to purchase one ten-thousandth of a share of Series A Junior Participating Cumulative Preferred Stock of the Company that, pursuant to the terms of the Shareholder Rights Agreement, dated as of July 27, 2012, are attached to the shares of Company’s Common Stock that are issued. Until the occurrence of certain prescribed events, the Rights are not exercisable, are evidenced by the certificates for the Company’s Common Stock and are transferred only with such Common Stock. Because no separate consideration is paid for the Rights, the registration fee therefor is included in the fee for the Company’s Common Stock. Any value attributable to the Rights is reflected in the market price of the Company’s Common Stock.

 

 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 is being filed by Albany Molecular Research, Inc. (the “Registrant”) for the purpose of registering an additional (i) 200,000 shares of Common Stock, par value $0.01 per share (“Common Stock”), of the Registrant reserved for issuance under the Third Amended 1998 Employee Stock Purchase Plan (the “1998 Plan”) and (ii) 2,000,000 shares of Common Stock reserved for issuance under the Third Amended 2008 Stock Option and Incentive Plan (the “2008 Plan”). Following the registration of the additional shares of Common Stock under this Registration Statement, a total of (i) 1,600,000 shares of Common Stock will be registered under the 1998 Plan and (ii) 7,700,000 shares of Common Stock will be registered under the 2008 Plan.

 

The securities subject to this Registration Statement on Form S-8 are of the same class as other securities for which Registration Statements on Form S-8 were previously filed by the Registrant and declared effective by the Securities and Exchange Commission (the “Commission”). Accordingly, pursuant to General Instruction E to Form S-8, the Registrant hereby incorporates by reference into this Registration Statement the contents of the Registration Statements on Form S-8 previously filed with the Commission on: (i) June 11, 1999 (File No. 333-80477), (ii) July 7, 2008 (File No. 333-152169), (iii) June 17, 2011 (File No. 333-174973), and (iv) June 10, 2013 (File No. 333-189219).

 

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3. Incorporation of Documents by Reference.

 

The following documents filed with the Commission are incorporated by reference in this Registration Statement:

 

(a)

Annual Report on Form 10-K for the fiscal year ended December 31, 2014 (File No. 001-35622), as filed with the Commission on March 16, 2015;

 

(b)

Quarterly Report on Form 10-Q for the period ended March 31, 2015 (File No. 001-35622), as filed with the Commission on May 8, 2015;

 

(c)

Current Report on Form 8-K filed (File No.001-35622), as filed with the Commission on June 5, 2015; and

 

(d)

The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form 8-A, as filed with the Commission on January 29, 1999 (File No. 000-25323), including any amendments or reports filed for the purpose of updating such description.

 

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, on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered herein 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 thereof from the date of filing of such documents.

 

Item 8. Exhibits.

 

Exhibit No.		Description of Exhibit
3.1		Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 000-25323).
3.2		Certificate of Amendment to Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 5, 2015, File No. 001-35622).
3.3		Amended and Restated By-Laws of the Company (incorporated herein by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 000-25323).

 

 

4.1		Specimen certificate for shares of Common Stock, $0.01 par value, of the Company (incorporated herein by reference to Exhibit 4.1 to Amendment No. 3 to the Company’s Registration Statement on Form S-1, File No. 333-58795).
4.2		Amended and Restated Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Albany Molecular Research, Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on July 31, 2012, File No. 001-35622).
4.3		Shareholder Rights Agreement, dated as of July 27, 2012, between the Company and Computershare Shareowner Services LLC, as Rights Agent (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on July 31, 2012, File No. 001-35622).
5.1		Opinion of Goodwin Procter LLP
23.1		Consent of Goodwin Procter LLP (included in Exhibit 5.1)
23.2		Consent of KPMG LLP
24.1		Power of Attorney (included as part of the signature page of this Registration Statement)

 

 

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 Albany, State of New York, on June 17, 2015.

 

	ALBANY MOLECULAR RESEARCH, INC.
	By:	/s/ William S. Marth
		William S. Marth
		Chief Executive Officer

 

POWER OF ATTORNEY AND SIGNATURES

 

KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints each of William S. Marth and Felicia Ladin as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement and Power of Attorney has been signed by the following person in the capacities as of June 17, 2015.

 

Signature		Title(s)
/s/ William S. Marth		President, Chief Executive Officer and Director
William S. Marth		(Principal Executive Officer)
/s/ Felicia Ladin		Chief Financial Officer and Treasurer
Felicia Ladin		(Principal Financial Officer and Principal Accounting Officer)
/s/ Thomas E. D’Ambra, Ph.D.		Chairman of the Board
Thomas E. D’Ambra, Ph.D.
/s/ Gabriel Leung		Director
Gabriel Leung
/s/ Kevin O’Connor		Director
Kevin O’Connor
/s/ Arthur J. Roth		Director
Arthur J. Roth
/s/ Veronica G.H. Jordan, Ph.D.		Director
Veronica G.H. Jordan, Ph.D.
/s/ Una S. Ryan, Ph.D., O.B.E.		Director
Una S. Ryan, Ph.D., O.B.E.

 

 

INDEX TO EXHIBITS

 

Exhibit No.		Description of Exhibit
3.1		Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.2 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 000-25323).
3.2		Certificate of Amendment to Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 5, 2015, File No. 001-35622).
3.3		Amended and Restated By-Laws of the Company (incorporated herein by reference to Exhibit 3.1 to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 1998, File No. 000-25323).
4.1		Specimen certificate for shares of Common Stock, $0.01 par value, of the Company (incorporated herein by reference to Exhibit 4.1 to Amendment No. 3 to the Company’s Registration Statement on Form S-1, File No. 333-58795).
4.2		Amended and Restated Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Albany Molecular Research, Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock (incorporated herein by reference to Exhibit 3.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on July 31, 2012, File No. 001-35622).
4.3		Shareholder Rights Agreement, dated as of July 27, 2012, between the Company and Computershare Shareowner Services LLC, as Rights Agent (incorporated herein by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on July 31, 2012, File No. 001-35622).
5.1		Opinion of Goodwin Procter LLP
23.1		Consent of Goodwin Procter LLP (included in Exhibit 5.1)
23.2		Consent of KPMG LLP
24.1		Power of Attorney (included as part of the signature page of this Registration Statement)

 

 

Exhibit 5.1

 

GOODWIN PROCTER LLP

COUNSELORS AT LAW

EXCHANGE PLACE

BOSTON, MA 02109

 

T: 617.570.1000

F: 617.523.1231

GOODWINPROCTER.COM

 

June 17, 2015

 

Albany Molecular Research, Inc.

26 Corporate Circle

Albany, New York 12203

 

Re:

Securities Being Registered under Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to (i) 200,000 shares of Common Stock, $0.01 par value per share (the “Common Stock”), of Albany Molecular Research, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 1998 Employee Stock Purchase Plan, as amended (the “1998 Plan”), and (ii) 2,000,000 shares of Common Stock of the Company that may be issued pursuant to the Company’s 2008 Stock Option and Incentive Plan, as amended (the “2008 Plan”). The aggregate shares of Common Stock referenced under clauses (i) and (ii) of this paragraph shall hereinafter be referred to as the “Shares”.

 

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.

 

The opinion set forth below is limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law).

 

For purposes of the opinion set forth below, we have assumed that a sufficient number of authorized but unissued shares of the Company’s Common Stock will be available for issuance when the Shares are issued.

 

Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the 1998 Plan or the 2008 Plan, as applicable, will be validly issued, fully paid and nonassessable.

 

We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.

 

	Very truly yours,
	/s/ Goodwin Procter LLP
	GOODWIN PROCTER  LLP

 

 

 

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors
Albany Molecular Research, Inc.:

 

We consent to the use of our report dated March 16, 2015, relating to the consolidated balance sheets of Albany Molecular Research, Inc. as of December 31, 2014 and 2013, and the related consolidated statements of operations, comprehensive (loss) income, stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2014, and the related financial statement schedule, and the effectiveness of internal control over financial reporting as of December 31, 2014, incorporated herein by reference.

 

Our report dated March 16, 2015, on the effectiveness of internal control over financial reporting as of December 31, 2014, contains an explanatory paragraph that management excluded from its assessment of the effectiveness of internal control over financial reporting as of December 31, 2014, Cedarburg Pharmaceuticals, Inc.’s and Oso BioPharmaceuticals Manufacturing, LLC’s (collectively, the “Acquired Businesses”), internal control over financial reporting associated with assets representing 13% of consolidated assets, and revenues representing approximately 10% of consolidated revenues included in the consolidated financial statements of the Company as of and for the year ended December 31, 2014. Our audit of internal control over financial reporting of Albany Molecular Research, Inc. also excluded an evaluation of the internal control over financial reporting of the Acquired Businesses.

 

KPMG LLP

 

Albany, New York
June 17, 2015