As filed with the Securities and Exchange Commission on August 6,
2010.
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
________________
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
________________
Eurand
N.V.
(Exact
Name of Registrant as Specified in Its Charter)
|
The
Netherlands
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
98-0455653
(I.R.S.
Employer
Identification
No.)
|
________________
Olympic
Plaza
Fred.
Roeskestraat 123
1076
EE Amsterdam, The Netherlands
(Address,
including zip code, of Principal Executive Offices)
________________
Eurand
N.V. Equity Compensation Plan
(Full
Title of the Plan)
________________
Eurand
Pharmaceuticals, Inc.
790
Township Line Road, Suite 250
Yardley,
Pennsylvania 19067
(267)
759-9400
Manya
S. Deehr
(Name,
Address and 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
definitions of “large accelerated filer”, “accelerated filer”, and “smaller
reporting company” in Rule 12b-2 of the Exchange Act:
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Large
accelerated filer
o
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Accelerated
filer
þ
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Non-accelerated
filer
o
(Do
not check if a smaller reporting company)
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Smaller
reporting company
o
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CALCULATION
OF REGISTRATION FEE
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Title
of Securities to be Registered
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Amount
to be Registered
(1)
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Proposed
Maximum Offering Price Per Share
(2)
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Proposed
Maximum Aggregate Offering Price
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Amount
of Registration Fee
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Ordinary
Shares (euro) 0.01 par value per share
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2,500,000
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$
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8.22
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$
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20,550,000
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$
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1,465.22
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(1)
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This
Registration Statement covers an indeterminable number of additional
Ordinary Shares as may hereafter be offered or issued pursuant to the
Plan, to prevent dilution resulting from stock splits, stock dividends or
similar transactions effected without receipt of consideration and
pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"
Securities
Act
").
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(2)
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Estimated
solely for the purposes 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 reported high and low sales prices per share
of the common stock of Eurand N.V. on August 2, 2010, as reported by the
NASDAQ Global Market. Pursuant to Rule 457(h)(2) of the
Securities Act of 1933, as amended, no separate registration fee is
required with respect to the plan
interests.
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EXPLANATORY
NOTE
This
Registration Statement on Form S-8 is filed by Eurand N.V. for the purpose of
registering an additional 2,500,000 ordinary shares, €0.01 par value per share,
of Eurand N.V. that may be offered and sold to participants pursuant to the
Eurand N.V. Equity Compensation Plan (the “
Plan
”). These additional
shares increase the aggregate number of ordinary shares that may be subject to
awards under the Plan from 9,735,224 to 12,235,224 shares. The
increase of an additional 2,500,000 ordinary shares available for issuance or
transfer under the Plan was approved by the Company’s shareholders at its Annual
Meeting of Shareholders held on June 9, 2010.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
The
documents containing the information specified in this Part I will be sent or
given to participants in the Plan covered by this Registration Statement as
specified by Rule 428(b)(1) promulgated under the Securities
Act. Such documents need not be filed with the Securities and
Exchange Commission (the “
Commission
”), either as part
of this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424 promulgated under the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3.
Incorporation of Documents by
Reference.
The
following documents, filed with the Commission by the Company, are incorporated
by reference into this Registration Statement:
(1)
the
Company’s Annual Report on Form 20-F for the fiscal year ended December 31,
2009, filed with the Commission on March 17, 2010; and
(2)
the
Company’s Report on Form 6-K for the quarter ended June 30, 2010, filed with the
Commission on August 6, 2010; and
(3)
the
description of the Company’s Ordinary Shares contained in the Company’s
Registration Statement on Form 8-A registering the Company’s Ordinary Shares
under Section 12(b) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, filed with the Commission on May 11, 2007, and any amendment or
report filed with the Commission for purposes of updating such description,
which description is incorporated by reference from the Company
Prospectus.
In
addition, all documents filed by the Company with the Commission pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all the securities offered hereby have been sold
or which deregisters all securities then remaining unsold, including any Form
6-K which the Company files with the Commission wherein such Form 6-K is
expressly incorporated by reference into this prospectus, shall be deemed to be
incorporated herein by reference and to be a part hereof from the date of the
filing of such documents with the Commission.
Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes hereof to the extent that a
statement contained herein (or in any other subsequently filed document which
also is incorporated by reference herein) modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item
4. Description
of Securities.
Not
Applicable.
Item
5. Interests
of Named Experts and Counsel.
Not
Applicable.
Item
6. Indemnification
of Directors and Officers.
Under
Dutch law, indemnification provisions may be included in the articles of
association and, accordingly, the Company’s articles of association, as amended
on June 5, 2009, provide that the Company shall indemnify any of its directors
against all adverse financial effects incurred by such person in connection with
any action, suit or proceeding if such person acted in good faith and in a
manner he or she reasonably could believe to be in or not opposed to its best
interests. In addition the Company has entered into indemnification agreements
with its directors and officers.
The
Company also maintains directors and officers’ liability insurance to provide
directors and officers with insurance coverage for losses arising from claims
for wrongful acts, where “wrongful act” means actual or alleged breach of duty
or trust, negligence, error, misstatement, misleading statement, omission,
breach of warranty of authority, employment practices violation or other
act.
Item
7. Exemption
from Registration Claimed.
Not
Applicable.
Item
8. Exhibits.
The
following is a list of Exhibits filed as part of this Registration Statement on
Form S-8.
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Exhibit
Number
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Description
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4.1
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Articles
of Association of Eurand N.V.*
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4.2
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Form
of Amended Articles of Association of Eurand N.V.*
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4.3
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Form
of Amended Articles of Association of Eurand N.V. *
†
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4.4
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Amended
Articles of Association of Eurand N.V. (incorporated by reference to
Exhibit 1.4 to the Company’s Annual Report on Form 20-F for the year ended
December 31, 2009)†
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4.5
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Form
of Investor Rights Agreement (incorporated by reference to Exhibit 4.3 to
the Company’s Annual Report on Form 20-F for the year ended December 31,
2009)*
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5
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Opinion
of NautaDutilh N.V. with respect to the legality of the securities to be
issued pursuant to the Plan
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23.1
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Consent
of Ernst & Young Accountants
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23.2
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Consent
of NautaDutilh N.V. (included in Exhibit 5)
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24
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Power
of Attorney (included as part of the Company’s signature
page)
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99.1
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The
Eurand N.V. Equity Compensation Plan, as amended and
restated
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†
Translated
into English as required by Rule 306 of Regulation S-T. In this
translation, an attempt has been made to be as literal as possible, without
jeopardizing the overall continuity. Inevitably, differences may occur
in translation, and if so, the Dutch text will govern.
*
Previously filed as an exhibit to the
Company's Registration Statement on Form F-1 (File No. 333-142481) filed with
the SEC and hereby incorporated by reference to such Registration
Statement.
Item
9. Undertakings.
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:
(a)
To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(b)
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;
(c)
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 paragraph
(1)(i) and (1)(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 Securities Exchange Act of 1934 that are incorporated
by reference in the 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.
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 Securities Exchange Act
of 1934 and each filing of an employee benefit plan’s annual report pursuant to
Section 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.
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.
SIGNATURES
Pursuant to the requirements of the
Securities Act, the Company 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 Amsterdam, The Netherlands, on August
6, 2010.
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Eurand
N.V.
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By
/s/ Gearoid M.
Faherty
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Name: Gearoid
Faherty
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Title:
Chief
Executive Officer
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We, the
undersigned officers and directors of Eurand N.V., hereby severally constitute
and appoint Gearoid Faherty and Mario Crovetto, our true and lawful attorneys,
with full power to 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 Eurand N.V. to comply with the
provisions of the Securities Act, 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, this Registration Statement has been
signed by the following persons in the capacities and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Gearoid M. Faherty
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Chairman
of the Board of Directors, Chief Executive Officer and Director (principal
executive officer)
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August
6, 2010
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Gearoid
M. Faherty
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/s/
Mario P. Crovetto
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Chief
Financial Officer (principal accounting and financial
officer)
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August
6, 2010
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Mario
P. Crovetto
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/s/
Jonathan Cosgrave
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Non–Executive
Director
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August
6, 2010
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Jonathan
Cosgrave
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/s/
Rolf A. Classon
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Non–Executive
Director
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August
6, 2010
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Rolf
A. Classon
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/s/
William J. Jenkins
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Non–Executive
Director
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August
6, 2010
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William
J. Jenkins
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/s/
Simon Turton
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Non–Executive
Director
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August
6, 2010
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Simon
Turton
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/s/
Angelo C. Malahias
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Non–Executive
Director
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August
6, 2010
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Angelo
C. Malahias
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/s/
Manya S. Deehr
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Chief
Legal Officer and Secretary,
Authorized
Representative in the U.S.
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August
6, 2010
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Manya
S. Deehr
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EURAND
N.V.
INDEX
TO EXHIBITS
The
following is the Index to Exhibits filed as part of this Registration Statement
on Form S-8.
|
Exhibit
Number
|
|
Description
|
|
|
|
|
|
4.1
|
|
Articles
of Association of Eurand N.V.*
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|
4.2
|
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Form
of Amended Articles of Association of Eurand N.V.*
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|
4.3
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Form
of Amended Articles of Association of Eurand N.V. *
†
|
|
4.4
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|
Amended
Articles of Association of Eurand N.V. (incorporated by reference to
Exhibit 1.4 to the Company’s Annual Report on Form 20-F for the year ended
December 31, 2009)†
|
|
4.5
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|
Form
of Investor Rights Agreement (incorporated by reference to Exhibit 4.3 to
the Company’s Annual Report on Form 20-F for the year ended December 31,
2009)*
|
|
5
|
|
Opinion
of NautaDutilh N.V. with respect to the legality of the securities to be
issued pursuant to the Plan
|
|
23.1
|
|
Consent
of Ernst & Young Accountants
|
|
23.2
|
|
Consent
of NautaDutilh N.V. (included in Exhibit 5)
|
|
24
|
|
Power
of Attorney (included as part of the Company’s signature
page)
|
|
99.1
|
|
The
Eurand N.V. Equity Compensation Plan, as amended and
restated
|
†
Translated
into English as required by Rule 306 of Regulation S-T. In this
translation, an attempt has been made to be as literal as possible, without
jeopardizing the overall continuity. Inevitably, differences may occur
in translation, and if so, the Dutch text will govern.
*
Previously filed as an exhibit to the
Company's Registration Statement on Form F-1 (File No. 333-142481) filed with
the SEC and hereby incorporated by reference to such Registration
Statement.
Grafico Azioni Eurand N.V. (MM) (NASDAQ:EURX)
Storico
Da Gen 2025 a Feb 2025
Grafico Azioni Eurand N.V. (MM) (NASDAQ:EURX)
Storico
Da Feb 2024 a Feb 2025
