As filed with the Securities and Exchange Commission on December 4, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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EPIX MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-3030815
(State or other jurisdiction of incorporation) (I.R.S. Employer
Identification No.)
71 Rogers Street
Cambridge, Massachusetts 02142
(Address of registrant's principal executive offices)
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1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
MICHAEL D. WEBB
PRESIDENT AND CHIEF EXECUTIVE OFFICER
EPIX Medical, Inc.
71 Rogers Street
Cambridge, Massachusetts 02142
(617) 499-1400
(Name, address and telephone number of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of each class of securities to Amount to be Proposed Proposed maximum Amount of
be registered registered maximum offering aggregate offering registration fee
price per share price
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value 66,666 shares $11.5625(1) $770,826(1) $227.39
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</TABLE>
(1) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) based upon the average of the high and low
sale prices on November 26, 1997 as reported by the Nasdaq National Market.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in the documents sent or
given to participants in the 1996 Employee Stock Purchase Plan of EPIX Medical,
Inc. (the "Registrant") pursuant to Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
- -------------------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996 (File No. 000-21863) filed with the Commission on March 27,
1997.
(b) All other reports of the Registrant filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Annual Report referred to in (a)
above.
(c) The description of the Registrant's Common Stock $.01 par value per
share ("Common Stock") contained in its Registration Statement on Form 8-A (File
No. 0-21863) filed with the Commission on December 10, 1996, including any
amendment or report filed hereafter for the purpose of updating such
description.
(d) The Registrant's definitive proxy statement or information statement,
if any, filed pursuant to Section 14 of the Exchange Act in connection with the
latest annual meeting of its stockholders, and any definitive proxy or
information statements so filed in connection with any subsequent special
meetings of its stockholders.
(e) Information as to stock options, including the amount outstanding,
exercises, prices and expiration dates, included in the Registrant's definitive
proxy statement, described in (d) above and which will be included in the future
either in the Registrant's proxy statements, annual reports or appendices to the
prospectus.
All documents filed after the date of this Registration Statement by the
Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act
and prior to the filing of a post-effective amendment that indicates that all
shares of Common Stock offered hereunder have been sold or which deregisters all
shares of Common Stock remaining unsold shall be deemed to be incorporated by
reference herein and to be a part hereof from the date of the filing of such
reports and documents.
<PAGE>
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law permits the Registrant
to indemnify directors, officers, employees and agents of the Registrant against
actual and reasonable expenses (including attorneys' fees) incurred by them in
connection with any action, suit or proceeding brought against them by reason of
their status or service as a director, officer, employee or agent by or on
behalf of the Registrant, and against expenses (including attorneys' fees),
judgments, fines and settlements actually and reasonably incurred by him in
connection with any such action, suit or proceeding, if (i) he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the Registrant and (ii) in the case of a criminal proceeding, he
had no reasonable cause to believe his conduct was unlawful. Except as ordered
by a court, no indemnification shall be made in connection with any proceeding
brought by or in the right of the corporation where the person involved is
adjudged to be liable to the Registrant.
Article NINTH of the Registrant's Restated Certificate of Incorporation
provides that a director shall not be personally liable to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent that elimination or limitation of liability is not
permitted under the Delaware General Corporation Law as in effect when such
liability is determined.
Article TENTH of the Registrant's Restated Certificate of Incorporation
provides that the Registrant shall, to the fullest extent permitted by the
General Corporation Law of the State of Delaware, as amended from time to time,
indemnify each person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that he
is or was, or has agreed to become a director or officer of the Registrant, or
is or was serving, or has agreed to serve at the request of the Registrant as a
director, officer or trustee of, or in a similar capacity with, another
corporation, partnership, joint venture, trust or other enterprise. The
indemnification provided for in Article TENTH is expressly not exclusive of any
other rights to which those seeking indemnification may be entitled under any
law, agreement or vote of stockholders or disinterested directors or otherwise,
and shall inure to the benefit of the heirs, executors and administrators of
such persons. Article TENTH further permits the Board of Directors to authorize
the grant of indemnification rights to other employees and agents of the
Registrant and such rights may be equivalent to, or greater or less than, those
set forth in Article TENTH.
Article V, Section 1 of the Registrant's By-Laws provide that the
Registrant shall, to the full extend permitted by the Delaware General
Corporation Law, as amended from time to time, and the Registrant's Restated
Certificate of Incorporation, indemnify each person whom it may indemnify
pursuant thereto.
Article V, Section 2 of the Registrant's By-Laws provides that the
Registrant shall have the power to purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Registrant, or is or was serving at the request of the Registrant as a director,
officer,
<PAGE>
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against such person and incurred
by such person in any such capacity or arising out of such person's status as
such.
The Registrant maintains insurance for directors and officers and has
entered into agreements with certain officers and directors affirming the
Registrant's obligation to indemnify them to the fullest extent permitted by law
and providing various other protections.
Item 7. Exemption from Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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Exhibit Number Description
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<S> <C>
4.1 Restated Certificate of Incorporation of the Registrant. Filed as Exhibit
4.1 to the Registrant's Registration Statement on Form S-8 on July 1,
1997 (File No. 333-30531) and incorporated herein by reference.
4.2 Amended Restated By-Laws of the Registrant. Filed as Exhibit 4.2 to the
Registrant's Registration Statement on Form S-8 on July 1, 1997 (File
No. 333-30531) and incorporated herein by reference.
4.3 Third Amended and Restated Stockholders' Rights Agreement by and
among the Registrant and certain of its stockholders named therein dated
May 29, 1996. Filed as Exhibit 10.22 to the Company's Registration
Statement on Form S-1 (File No. 333-17581) and incorporated herein by
reference.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the securities
registered hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors. Filed herewith.
23.2 Consent of Palmer & Dodge LLP. Contained in Opinion of Palmer &
Dodge LLP, filed as Exhibit 5.1 hereto.
24.1 Power of Attorney. Set forth on the signature page to this Registration
Statement.
24.2 Certified resolution of the Board of Directors authorizing Power of
Attorney. Filed herewith.
99.1 1996 Employee Stock Purchase Plan. Filed as Exhibit 10.32 to the
Registrants Registration Statement on Form S-1 (Registration No. 333-
17581) and incorporated herein by reference.
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Item 9. Undertakings.
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(a) 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:
<PAGE>
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(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 by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(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 Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
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 the provisions referred to in Item 6 hereof, 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.
<PAGE>
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 Cambridge, State of Massachusetts, on this 4th day
of December, 1997.
EPIX MEDICAL, INC.
By: /s/ Michael D. Webb
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Michael D. Webb
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of EPIX Medical, Inc. hereby
severally constitute and appoint Michael D. Webb, Jeffrey R. Lentz and William
T. Whelan and each of them singly, our true and lawful attorneys-in-fact, with
full power to them in any and all capacities, to sign any and all amendments to
this Registration Statement on Form S-8 including any post-effective amendments
thereto, and to file the same, with 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 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 dates indicated:
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Signature Title Date
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<S> <C> <C>
/s/ Michael D. Webb President, Chief Executive December 4, 1997
- ------------------------------------- Officer and Director
Michael D. Webb (Principal Executive
Officer)
/s/ Jeffrey R. Lentz Chief Financial Officer and December 4, 1997
- ------------------------------------ Vice President, Finance and
Jeffrey R. Lentz Administration (Principal
Financial Officer and
Principal Accounting Officer)
/s/ Christopher F.O. Gabrieli Chairman of the Board December 4, 1997
- ----------------------------------- and Director
Christopher F.O. Gabrieli
<PAGE>
/s/ Stanley T. Crooke, M.D., Ph.D. Director December 4, 1997
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Stanley T. Crooke, M.D., Ph.D.
/s/ Luke B. Evnin, Ph.D. Director December 4, 1997
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Luke B. Evnin, Ph.D.
/s/ Randall B. Lauffer, Ph.D. Director December 4, 1997
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Randall B. Lauffer, Ph.D.
</TABLE>
<PAGE>
EXHIBIT INDEX
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Exhibit Number Description
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<S> <C>
4.1 Restated Certificate of Incorporation of Registrant. Filed as Exhibit 4.1
to the Registrant's Registration Statement on Form S-8 on July 1, 1997
(File No. 333-30531) and incorporated herein by reference.
4.2 Amended and Restated By-Laws of Registrant. Filed as Exhibit 4.2 to
the Registrant's Registration Statement on Form S-8 on July 1, 1997 (File
No. 333-30531) and incorporated herein by reference.
4.3 Third Amended and Restated Stockholders' Rights Agreement by and
among the Registrant and certain of its stockholders named therein dated
May 29, 1996. Filed as Exhibit 10.22 to the Company's Registration
Statement on Form S-1 (File No. 333-17581) and incorporated herein by
reference.
5.1 Opinion of Palmer & Dodge LLP as to the legality of the securities
registered hereunder. Filed herewith.
23.1 Consent of Ernst & Young LLP, independent auditors. Filed herewith.
23.2 Consent of Palmer & Dodge LLP, Contained in Opinion of Palmer &
Dodge LLP, filed as Exhibit 5.1 hereto.
24.1 Power of Attorney. Set forth on the signature page to this Registration
Statement.
24.2 Certified resolution of the Board of Directors authorizing Power of
Attorney. Filed herewith.
99.1 1996 Employee Stock Purchase Plan. Filed as Exhibit 10.32 to the
Registrants Registration Statement on Form S-1 (Registration No. 333-
17581) and incorporated herein by reference.
</TABLE>
EXHIBIT 5.1
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02108
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
December 4, 1997
EPIX Medical, Inc.
71 Rogers Street
Cambridge, MA 02142
Re: 1996 Employee Stock Purchase Plan
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Ladies and Gentlemen:
We are rendering this opinion in connection with the Registration Statement
on Form S-8 (the "Registration Statement") filed by EPIX Medical, Inc. (the
"Company") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended, on or about the date hereof. The Registration Statement
relates to 66,666 shares (the "Shares") of the Company's Common Stock, $0.01 par
value, offered pursuant to the provisions of the Company's 1996 Employee Stock
Purchase Plan (the "Plan").
We have acted as your counsel in connection with the preparation of the
Registration Statement and are familiar with the proceedings taken by the
Company in connection with the authorization of the issuance and sale of the
Shares. We have examined all such documents as we consider necessary to enable
us to render this opinion.
Based upon the foregoing, we are of the opinion that when issued in
accordance with the terms of the Plan, the Shares will be validly issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement.
Very truly yours,
/s/ Palmer & Dodge LLP
PALMER & DODGE LLP
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1996 Employee Stock Purchase Plan of EPIX Medical, Inc.
of our report dated January 11, 1997 (except for Note 15, the date for which is
February 13, 1997), with respect to the financial statements of EPIX Medical,
Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
1996 filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
December 4, 1997
EXHIBIT 24.2
EPIX MEDICAL, INC.
Certificate of Assistant Secretary
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I, William T. Whelan, being the duly elected and acting Assistant
Secretary of EPIX Medical, Inc. (the "Corporation"), a Delaware corporation,
hereby certify that the following is a true, correct and complete copy of
resolutions duly adopted by the Board of Directors of the Corporation by
unanimous written consent dated October 20, 1997; and that said resolutions have
not been amended or rescinded and are now in full force and effect.
Registration Statement on Form S-8
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RESOLVED: That the President, any Vice President and the
Treasurer of the Corporation, each acting singly, be and
hereby are authorized in the name and on behalf of the
Corporation to execute and file with United States
Securities and Exchange (the "Commission") registration
statements on Form S-8 (the "Registration Statements")
relating to the registration under the Securities Act of
1933, as amended (the "Act"), of 66,666 shares of the
Corporation's Common Stock reserved for issuance under the
Corporation's 1996 Employee Stock Purchase Plan, such
Registration Statements and any amendments thereto to be in
such form as may be approved by the officer executing the
same, his execution and filing thereof to be conclusive
evidence of this approval; and such officers, and each
acting singly, be and hereby are authorized to take any and
all other action as they or any of them may deem necessary
or advisable to effect such registration.
RESOLVED: That any officer of the Corporation executing, on
behalf of the Corporation or in any other capacity, the
Registration Statements referred to in the resolution above
and any and all amendments to such Registration Statements
and other documents to be filed with the Commission in
connection therewith is hereby authorized to execute the
same through or by Michael D. Webb, Jeffrey R. Lentz or
William T. Whelan, as attorney-in-fact, pursuant to a power
of attorney reflecting such authorization.
WITNESS my signature and the seal of the Corporation affixed this 24th day
of November, 1997.
[CORPORATE SEAL] /s/ William T. Whelan
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William T. Whelan
Assistant Secretary
