<PAGE>
As filed with the Securities and Exchange Commission on July 21, 1999.
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
INNOVASIVE DEVICES, INC.
------------------------
(Exact name of registrant as specified in its charter)
04-3132641
----------
(I.R.S. employer identification no.)
MASSACHUSETTS
-------------
(State or other jurisdiction of incorporation or organization)
734 FOREST STREET, MARLBOROUGH, MA 01752-3032
----------------------------------------------
(Address of principal executive offices) (Zip Code)
1996 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of plans)
RICHARD D. RANDALL, PRESIDENT AND CHIEF EXECUTIVE OFFICER
INNOVASIVE DEVICES, INC.
734 FOREST STREET
MARLBOROUGH, MA 01752-3032
---------------------------
(Name and address of agent for service)
(508) 460-8229
--------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Title of maximum maximum Amount
securities Amount offering aggregate of
to be to be price per offering registration
registered registered(1) share (2) price (2) fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 100,000 $3.03125 $303,125 $84.27
$.0001 par shares
value
================================================================================
</TABLE>
(1) Plus such additional number of shares as may be required pursuant to the
Plan in the event of a stock dividend, split-up of shares, recapitalization or
other similar change in the Common Stock.
(2) Estimated solely for the purpose of calculating the registration fee, in
accordance with Rule 457(h)(1), on the basis of the average of the high and low
prices of the Common Stock as reported on the Nasdaq National Market on July 14,
1999.
<PAGE>
EXPLANATORY NOTE
This Registration Statement has been prepared in accordance with the
requirements of Form S-8, as amended, and relates to an aggregate of 100,000
shares of Common Stock, $.0001 par value, of Innovasive Devices, Inc. (the
"Company") which have been reserved for issuance under the Company's 1996
Employee Stock Purchase Plan, which shares represent an increase in the number
of shares reserved for issuance under such plan. 50,000 shares have been
previously registered under such plan.
1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Form 10-K for the year ended December 31, 1998 filed
with the Securities and Exchange Commission (the "Commission") under the
Securites Exchange Act of 1934, as amended (the "Exchange Act"); and
(b) The Company's Form 10-Q for the quarter ended March 31, 1999
filed with the Commission under the Exchange Act; and
(c) The description of the Company's Common Stock incorporated by
reference in the Company's registration statement on Form 8-A (SEC File No.
0-28492) filed with the Commission on May 13, 1996 from the registration
statement on Form S-1 (SEC File No. 333-3368) filed with the Commission on
June 5, 1996.
In addition, all documents filed by the Company after the initial filing
date of this registration statement pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and prior to the filing of a post-effective amendment which
indicates that all shares registered hereunder have been sold or which de-
registers all shares 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.
Item 4. Description of Securities
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel
--------------------------------------
The legality of the shares of Common Stock offered hereby has been passed
upon for the Company by Choate, Hall & Stewart,
1
<PAGE>
53 State Street, Exchange Place, Boston, Massachusetts 02109. Roslyn G. Daum, a
partner of the firm, is Clerk of the Company.
Item 6. Indemnification of Officers and Directors
-----------------------------------------
Section 67 of Chapter 156B of the Massachusetts General Laws provides that
a corporation may indemnify its directors and officers to the extent specified
in or authorized by (i) the articles of organization, (ii) a by-law adopted by
the stockholders, or (iii) a vote adopted by the holders of a majority of the
shares of stock entitled to vote on the election of directors. In all
instances, the extent to which a corporation provides indemnification to its
directors and officers under Section 67 is optional. In its Third Restated
Articles of Organization, the Registrant has elected to commit to provide
indemnification to its directors and officers in specified circumstances.
Generally, Article 6 of the Registrant's Third Restated Articles of Organization
indemnifies directors and officers of the Registrant against liabilities and
expenses arising out of legal proceedings brought against them by reason of
their status as directors or officers, by reason of their agreeing to serve, at
the request of the Registrant, as a director or officer with an other
organization or by reason of their serving at the request of the Registrant in
any capacity with respect to any employee benefit plan. Under this provision, a
director or officer of the Registrant shall be indemnified by the Registrant for
all costs and expenses (including attorneys fees), judgments, liabilities and
amounts paid in settlement of such proceedings, even if he is not successful on
the merits, if he acted in good faith in the reasonable belief that his action
was in the best interests of the Registrant or, in the case of an employee
benefit plan, in the best interest of the participants or beneficiaries of such
plan. The Board of Directors may authorize advancing litigation expenses to a
director or officer at his request upon receipt of an undertaking by any such
director or officer to repay such expenses if it is ultimately determined that
he is not entitled to indemnification for such expenses.
Article 6 of the Registrant's Third Restated Articles of Organization
eliminates the personal liability of the Registrant's directors to the
Registrant or its stockholders for monetary damages for breach of a director's
fiduciary duty, except to the extent Chapter 156B of the Massachusetts General
Laws prohibits the elimination or limitation of such liability.
2
<PAGE>
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares
being registered.
10.1 Registrant's 1996 Employee Stock Purchase Plan (as amended and
restated on July 14,1999).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page
II-6).
Item 9. Undertakings
------------
(a) The Company hereby undertakes:
(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 the purpose of determining any liability under the
Securities Act of 1933, as amended (the "Securities Act"), 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; and
(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 Company hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing
3
<PAGE>
of the Company's annual report pursuant to Section 13(a) or 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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company will, unless in the opinion of 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing a Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the Town of Marlborough, Commonwealth of Massachusetts on July
14, 1999.
Innovasive Devices, Inc.
(Issuer and Employer)
By: /s/ Richard D. Randall
---------------------------
Richard D. Randall
President and Chief
Executive Officer
5
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Richard D. Randall, James V. Barrile and
Roslyn G. Daum, jointly and severally, his true and lawful attorneys-in-fact and
agents with full powers of substitution, for him and in his 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 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 and necessary to be in and about the premises, as
fully 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 thereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below as of the dates indicated by the
following persons in the capacities indicated.
<TABLE>
<CAPTION>
Name Capacity Date
- -------------------------- ----------------------------- -------
<S> <C> <C>
/s/ Richard D. Randall President, Chief Executive 7/14/99
- -------------------------- Officer and Director
Richard D. Randall (Principal Executive Officer)
/s/ James V. Barrile Chief Financial Officer 7/14/99
- -------------------------- (Principal Financial
James V. Barrile and Accounting Officer)
/s/ Joseph A. Ciffolillo Director 7/14/99
- --------------------------
Joseph A. Ciffolillo
/s/ Alan Chervitz Director 7/14/99
- --------------------------
Alan Chervitz
/s/ Robert R. Momsen Director 7/14/99
- --------------------------
Robert R. Momsen
/s/ Howard D. Palefsky Director 7/14/99
- --------------------------
Howard D. Palefsky
</TABLE>
6
<PAGE>
INDEX TO EXHIBITS
-----------------
Exhibit Number
- --------------
5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares
being registered.
10.1 Registrant's 1996 Employee Stock Purchase Plan (as amended and
restated on July 14, 1999).
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1).
24.1 Power of Attorney (included in page II-6).
1
<PAGE>
EXHIBIT 5.1
-----------
CHOATE, HALL & STEWART
A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS
EXCHANGE PLACE
53 STATE STREET
BOSTON, MASSACHUSETTS 02109-2891
TELEPHONE (617) 248-5000
FACSIMILE (617) 248-4000
TELEX 49615860
July 21, 1999
Innovasive Devices, Inc.
734 Forest Street
Marlborough, Massachusetts 01752-3032
Gentlemen:
This opinion is delivered to you in connection with the registration
statement on Form S-8 (the "Registration Statement") to be filed on July 21,
1999 by Innovasive Devices, Inc. (the "Company") under the Securities Act of
1933, as amended, for registration under said Act of 100,000 shares of common
stock, $.0001 par value (the "Common Stock"), of the Company.
We are familiar with the Company's Third Restated Articles of Organization,
as amended, its By-Laws, as amended, and its corporate minute book as well as
the Registration Statement. We have also examined such other documents, records
and certificates and made such further investigation as we have deemed necessary
for the purposes of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
shares of Common Stock to be sold by the Company under its 1996 Employee Stock
Purchase Plan, as in effect on the date hereof, when issued against receipt of
the agreed purchase price therefor, will be legally issued, fully paid and
nonassessable.
We understand that this opinion is to be used in connection with the
Registration Statement and consent to the filing of this opinion as an exhibit
to the Registration Statement. We further consent to the reference to this firm
in the section entitled "Interests of Named Experts and Counsel" in the
Registration Statement.
Very truly yours,
CHOATE, HALL & STEWART
<PAGE>
INNOVASIVE DEVICES, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
As Amended and Resated as of July 14, 1999
1. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan") is
-------
to provide employees of Innovasive Devices, Inc., a Massachusetts
corporation (the "Company"), and its subsidiaries, an opportunity to
purchase Common Stock, $.0001 par value, of the Company (the "Shares").
The Plan is intended to qualify as an "employee stock purchase plan" within
the meaning of Section 423 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. ADMINISTRATION OF THE PLAN. The Board of Directors (the "Board") or any
--------------------------
committee or persons to whom it delegates its authority (the
"Administrator") shall administer, interpret and apply all provisions of
the Plan. The Administrator may waive such provisions of the Plan as it
deems necessary to meet special circumstances not anticipated or covered
expressly by the Plan. Nothing contained in this Section shall be deemed
to authorize the Administrator to alter or administer the provisions of the
Plan in a manner inconsistent with the provisions of Section 423 of the
Code. No member of the Administrator shall be liable for any action or
determination made in good faith with respect to the Plan or any right
granted under it.
3. ELIGIBLE EMPLOYEES. Subject to the provisions of paragraphs 8, 9 and 10
------------------
below, any individual who is in the full-time employment (as defined below)
of the Company or any of its subsidiaries (as defined in Section 424(f) of
the Code), the employees of which are designated by the Board as eligible
to participate in the Plan, is eligible to participate in any Offering of
Shares (as defined in paragraph 4 below) made by the Company hereunder.
Full-time employment shall include all employees whose customary employment
is:
(a) at least 20 hours per week; and
(b) more than five months in the relevant calendar year.
4. OFFERING DATES. From time to time the Company, by action of the Board,
--------------
will grant rights to purchase Shares to employees eligible to participate
in the Plan pursuant to one or more offerings (each of which is an
"Offering") on a date or series
1
<PAGE>
of dates (each of which is an "Offering Date") designated for this purpose
by the Board.
5. PRICES. The price per share for each grant of rights hereunder shall be
------
the lesser of:
(a) eighty-five percent (85%) of the fair market value of a Share on the
Offering Date on which such right was granted; or
(b) eighty-five percent (85%) of the fair market value of a Share on the
date such right is exercised. At its discretion, the Board may
determine a higher price for a grant of rights.
For purposes of this Plan, the term "fair market value" on any date means
(i) the average (on that date) of the high and low prices for shares of the
Common Stock on the principal national securities exchange on which the
Common Stock is traded, if the Common Stock is then traded on a national
securities exchange; or (ii) the last reported sale price (on that date) of
the Common Stock on the Nasdaq National Market, if the Common Stock is not
then traded on a national securities exchange; or (iii) the closing bid
price (or average of bid prices) last quoted (on that date) by an
established quotation service for over-the-counter securities, if the
Common Stock is not listed on the Nasdaq National Market or on a national
securities exchange. If the Common Stock is not publicly traded at the
time a right is granted under this Plan, "fair market value" shall mean the
fair market value of the Common Stock as determined by the Administrator
after taking into consideration all factors which it deems appropriate,
including, without limitation, recent sale and offer prices of shares of
the Common Stock in private transactions negotiated at arm's length.
6. EXERCISE OF RIGHTS AND METHOD OF PAYMENT.
----------------------------------------
(a) Rights granted under the Plan will be exercisable periodically on
specified dates as determined by the Board.
(b) The method of payment for Shares purchased upon exercise or rights
granted hereunder shall be through regular payroll deductions or by
lump sum cash payment, or both, as determined by the Board. No
interest shall be paid upon payroll deductions unless specifically
provided for by the Board.
(c) Any payments received by the Company from a participating employee and
not utilized for the purchase of Shares upon exercise of a right
granted hereunder shall be promptly
2
<PAGE>
returned to such employee by the Company after termination of the
right to which the payment relates.
7. TERM OF RIGHTS. Rights granted on any Offering Date shall be exercisable
--------------
upon the expiration of such period ("Offering Period"), as shall be
determined by the Board when it authorizes the Offering, provided that such
Offering Period shall in no event be longer than twenty-seven (27) months.
8. SHARES SUBJECT TO THE PLAN. No more than 150,000 Shares may be sold
--------------------------
pursuant to rights granted under the Plan; provided, however, that
-------- -------
appropriate adjustment shall be made in such number, in the number of
Shares covered by outstanding rights granted hereunder, in the exercise
price of the rights and in the maximum number of Shares which an employee
may purchase (pursuant to paragraph 9 below) to give effect to any mergers,
consolidations, reorganizations, recapitalizations, stock splits, stock
dividends or other relevant changes in the capitalization of the Company
occurring after the effective date of the Plan, provided that no fractional
Shares shall be subject to a right and each right shall be adjusted
downward to the nearest full Share. Any agreement of merger or
consolidation will include provisions for protection of the then existing
rights of participating employees under the Plan. Either authorized and
unissued Shares or issued Shares heretofore or hereafter reacquired by the
Company may be made subject to rights under the Plan. If for any reason
any right under the Plan terminates in whole or in part, Shares subject to
such terminated right may again be subjected to a right under the Plan.
9. LIMITATIONS ON GRANTS.
---------------------
(a) No employee shall be granted a right hereunder if such employee,
immediately after the right is granted, would own stock or rights to
purchase stock possessing five percent (5%) or more of the total
combined voting power or value of all classes of stock of the Company,
or of any subsidiary, computed in accordance with Sections 423(b)(3)
and 424(d) of the Code.
(b) No employee shall be granted a right which permits his right to
purchase shares under all employee stock purchase plans of the Company
and its subsidiaries to accrue at a rate which exceeds twenty-five
thousand dollars ($25,000) (or such other maximum as may be prescribed
from time to time by the Code) of the fair market value of such Shares
(determined at the time such right is granted) for each calendar year
in which such right is outstanding at any time in accordance with the
provisions of Section 423(b)(8) of the Code.
3
<PAGE>
(c) No rights granted to participating employees under a single Offering
shall cover more shares than may be purchased at an exercise price
equal to 10% of the compensation payable to the employees during the
Offering not taking into consideration any changes in the employee's
rate of compensation after the date the employee elects to participate
in the Offering, or such other maximum percentage of employees'
compensation as determined by the Board from time to time.
10. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited to
----------------------
eligible employees who elect to participate in such Offering in the manner
and within the time limitation established by the Board when it authorizes
the offering.
11. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected to
---------------------------------------
participate in an Offering may, unless the employee has waived this
cancellation right at the time of such election in a manner established by
the Board, cancel such election as to all (but not part) of the rights
granted under such Offering by giving written notice of such cancellation
to the Company before the expiration of the Offering Period. Any amounts
paid by the employee for the Shares or withheld for the purchase of Shares
from the employee's compensation through payroll deductions shall be paid
to the employee, without interest, upon such cancellation.
12. TERMINATION OF EMPLOYMENT. Upon termination of employment for any reason,
-------------------------
including the death of the employee, before the date on which any rights
granted under the Plan are exercisable, all such rights shall immediately
terminate and amounts paid by the employee for the Shares or withheld for
the purchase of Shares from the employee's compensation through payroll
deductions shall be paid to the employee or to the employee's estate,
without interest.
13. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have
--------------------------------
any rights as a stockholder in the Shares covered by a right granted
hereunder until such right has been exercised, full payment has been made
for the corresponding Shares and a certificate representing such Shares
has been issued.
14. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or
-----------------------
transferable by a participating employee and are exercisable only by the
employee.
15. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended to
------------------------------------------------
provide shares of Common Stock for investment and not for resale. The
Company does not, however, intend to restrict or influence any employee in
the conduct of his/her own affairs. An employee may, therefore, sell
Shares
4
<PAGE>
purchased under the Plan at any time the employee chooses, subject
to compliance with any applicable Federal or state securities laws;
provided, however, that because of certain Federal tax requirements, each
employee agrees, by entering the Plan, to promptly give the Company notice
of any Shares disposed of within two years after the date of grant of the
applicable right, indicating the number of such Shares disposed of. THE
EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE
STOCK.
16. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board may at any time
-------------------------------------------
terminate or amend this Plan without notice and without further action on
the part of stockholders of the Company, provided:
(a) that no such termination or amendment shall adversely affect the then
existing rights of any participating employee;
(b) that any such amendment which:
(i) increases the number of Shares subject to the Plan (subject to
the provisions of paragraph 7);
(ii) changes the class of persons eligible to participate under the
Plan; or
(iii) materially increases the benefits accruing to participants under
the Plan
shall be subject to approval of the stockholders of the Company.
17. EFFECTIVE DATE AND APPROVALS. The Plan was adopted by the Board on April
----------------------------
2, 1996 and approved by the stockholders of the Company on April 23, 1996.
The Company's obligation to offer, sell and deliver its Shares under the
Plan is subject to any governmental authority required in connection with
the authorized issuance or sale of such Shares and is further subject to
the Company receiving the opinion of its counsel that all applicable
securities laws have been complied with.
5
<PAGE>
18. TERM OF PLAN. No rights shall be granted under the Plan after April 1,
------------
2006.
Date approved by the Board
of Directors of the Company: April 2, 1996
Date approved by the
Stockholders of the Company: April 26, 1996
Increase Authorized Shares
to 150,000 July 14, 1999
6
<PAGE>
EXHIBIT 23.1
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 18, 1999 appearing on page 22
of Innovasive Devices, Inc.'s Annual Report on Form 10-K for the year ended
December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
July 21, 1999
1
