<PAGE> 1
As filed with the Securities and Exchange Commission
on May 23, 1994
Registration No. 33-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GENETICS INSTITUTE, INC.
-------------------------------------------------
(Exact name of issuer as specified in its charter)
DELAWARE 04-2718435
------------------------------- ------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
87 CAMBRIDGEPARK DRIVE, CAMBRIDGE, MASSACHUSETTS 02140
- ------------------------------------------------ ----------
(Address of Principal Executive Offices) (Zip Code)
1991 EMPLOYEE STOCK PURCHASE PLAN
---------------------------------
(Full title of the plan)
MARK G. BORDEN, ESQ.
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
---------------------------------------
(Name and address of agent for service)
(617) 526-6000
------------------------------------------------------------
(Telephone number, including area code, of agent for service)
<TABLE>
===============================================================================
CALCULATION OF REGISTRATION FEE
<CAPTION>
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
- ---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Depositary Shares, 300,000 $43.125(1) $12,937,500(1) $4,461.21
each representing shares
one share of
Common Stock,
$.01 par value,
subject to a call
option and
evidenced by a
depositary
receipt
- ---------------------------------------------------------------------
</TABLE>
<PAGE> 2
<TABLE>
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value (2) N/A N/A (3)
- ---------------------------------------------------------------------
<FN>
(1) Estimated solely for the purpose of calculating the
registration fee, and based upon the average of the
high and low prices of the Common Stock on the Nasdaq
National Market on May 17, 1994 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933.
(2) Such number of shares of Common Stock as are represented
by the Depositary Shares registered hereby.
(3) Because the Common Stock is issued for no consideration,
no registration fee is required with respect thereto.
- ---------------------------------------------------------------------
</TABLE>
<PAGE> 3
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents
sent or given to participating employees of the 1991 Employee
Stock Purchase Plan of Genetics Institute, 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 Certain Documents by Reference.
------------------------------------------------
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities
Exchange Act of 1934 (as amended, the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other
information with the Securities and Exchange Commission. The
following documents, which are filed with the Securities and
Exchange Commission, are incorporated in this Prospectus by
reference:
(1) The Registrant's latest annual report, as amended,
filed pursuant to Section 13(a) or 15(d) of the Exchange Act,
or the latest prospectus filed pursuant to Rule 424(b), or
otherwise, under the Securities Act that contains audited
financial statements for the Registrant's latest fiscal year
for which such statements have been filed.
(2) All other reports filed pursuant to Section 13(a)
or 15(d) of the Exchange Act since the end of the fiscal year
covered by the annual report or the prospectus referred to in
(1) above.
(3) The description of the common stock of the
Registrant, par value $.01 per share ("Common Stock"),
contained in a registration statement filed under the
Exchange Act, including any amendment or report filed for the
purpose of updating such description.
(4) The description of the depositary shares of the
Registrant, each representing one share of Common Stock,
subject to a call option and evidenced by a depositary
receipt (the "Depositary Shares"), contained in a
registration statement filed under the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
(5) 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
<PAGE> 4
meeting of its stockholders, and any definitive proxy or
information statements so filed in connection with any
subsequent special meetings of its stockholders.
(6) Information as to stock options, including the
amount outstanding, exercises, prices and expiration dates,
included in the Registrant's definitive proxy statement,
described in (4) 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 subsequently filed 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 which indicates that
all shares of Common Stock offered hereby have been sold or which
deregisters all shares of Common Stock then remaining unsold,
shall be deemed to be incorporated by reference herein and to be
part hereof from the date of the filing of such documents.
Item 4. Description of Securities.
-------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification
---------------
Article TENTH of the Company's Restated Certificate of
Incorporation provides that no director of the Company shall be
liable for any breach of fiduciary duty, except to the extent that
the Delaware General Corporation Law prohibits the elimination of
limitation of liability of directors for breach of fiduciary duty.
Article ELEVENTH of the Company's Restated Certificate of
Incorporation provides that a director or officer of the Company
(a) shall be indemnified by the Company against all costs,
charges, expenses, (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred in
connection with any litigation or other legal proceeding (other
than an action by or in the right of Genetics Institute) brought
against such person by virtue of such person's position as a
director or officer of the Company if such person acted in good
faith and in a manner such person reasonably believed to be in, or
not opposed to, the best interests of the Company, and, with
respect to any criminal action or proceeding, has no reasonable
cause to believe such person's conduct was unlawful and (b) shall
be indemnified by the Company against all costs, charges and
expenses (including attorneys' fees) actually and reasonably
incurred in connection with any action by or in the right of the
Company brought against such person by virtue or such person's
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<PAGE> 5
position as a director or officer of the Company if such person
acted in good faith and in a manner such person reasonably
believed to be in, or not opposed to, the best interests of the
Company, except that no indemnification shall be made with respect
to any such matters as to which such person shall have been
adjudged to be liable to the Company, unless a court determines
that, despite such adjudication, in view of all of the
circumstances, such person is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a
director or officer has been successful, on the merits or
otherwise, including without limitation, the dismissal of an
action without prejudice or the settlement of an action without
admission of liability, such person is required to be indemnified
by the Company against all costs, charges and expenses (including
attorneys' fees) actually and reasonably incurred in connection
therewith. Expenses shall be advanced to a director or officer at
such person's request, provided that such person undertakes to
repay the amount advanced if it is ultimately determined that such
person is not entitled to indemnification or such expenses.
Indemnification is required to be made unless a majority of a
quorum of the disinterested directors of the Board of Directors,
or if no such quorum is met, independent legal counsel determines
that the applicable standard of conduct required for
indemnification has not been met. In the event of a determination
by a majority of a quorum of the disinterested directors of the
Board of Directors or, if no such quorum is met, independent legal
counsel that the director or officer did not meet the applicable
standard of conduct required for indemnification, or if the
Company fails to make a determination within 60 days after such
payment is claimed by such person, such person is permitted to
petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a
condition precedent to the right of indemnification, the director
or officer must give the Company notice of the action for which
indemnity is sought and the Company has the right to participate
in such action or assume the defense thereof.
Article ELEVENTH of the Company's Restated Certificate of
Incorporation further provides that the indemnification set forth
therein is not exclusive, and provides that in the event that the
Delaware General Corporation Law is amended to expand the
indemnification permitted to directors or officers, the Company
must indemnify those persons to the fullest extent permitted by
such laws as so amended.
Substantially similar indemnification provisions are
contained in the By-laws of the Company.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
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<PAGE> 6
Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings.
------------
1. The Registrant hereby undertakes:
(a) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) 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; and
(iii) 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 paragraphs (i) and (ii) do not apply
if the registration statement is on Form S-3 or Form S-8, and
the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic
reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability
under 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.
(c) 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.
2. The Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
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<PAGE> 7
filing of an employee benefit plan's annual report pursuant to
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 in the initial bona fide offering thereof.
3. Insofar as indemnification for liabilities arising under
the Securities Act 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
Securities 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 Securities Act and will
be governed by the final adjudication of such issue.
-5-
<PAGE> 8
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Boston, Commonwealth of Massachusetts on the 23rd day of May,
1994.
GENETICS INSTITUTE, INC.
GABRIEL SCHMERGEL
By: __________________________
Gabriel Schmergel
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Genetics
Institute, Inc. hereby severally constitute Gabriel Schmergel,
Garen G. Bohlin and Lawrence V. Stein, and each of them singly,
our true and lawful attorneys with full power to them, and 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 behalf in our capacities as officers and directors to
enable Genetics Institute, Inc. to comply with all requirements of
the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by said attorneys,
or any of them, to said Registration Statement and any and all
amendments thereto.
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<PAGE> 9
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
Signature Title
--------- -----
GABRIEL SCHMERGEL President, Chief )
- ------------------------- Executive Officer and )
Gabriel Schmergel Director (Principal )
Executive Office) )
)
)
GAREN G. BOHLIN Executive Vice President )
- ------------------------- (Principal Financial and )
Garen G. Bohlin Accounting Officer) )
)
)
BENNO C. SCHMIDT Chairman of the Board and )
- ------------------------- Director )
Benno C. Schmidt )
)
)
)
- ------------------------- Director )
James G. Andress ) May 23, 1994
)
)
ANTHONY B. EVNIN Director )
- ------------------------- )
Anthony B. Evnin )
)
)
FRED HASSAN Director )
- ------------------------- )
Fred Hassan )
)
)
)
- ------------------------- Director )
Thomas P. Maniatis )
)
)
ROBERT I. LEVY Director )
- ------------------------- )
Robert I. Levy )
)
-7-
<PAGE> 10
<TABLE>
EXHIBIT INDEX
-------------
<CAPTION>
Exhibit
Number Description Page
- ------- ----------- ----
<S> <C> <C>
3.(i) Restated Certificate of Incorporation (1) --
3.(ii) Restated By-laws of the Registrant (2) --
5.1 Opinion of Hale and Dorr.
23.1 Consent of Hale and Dorr (included in Exhibit 5.1). --
23.2 Consent of Arthur Andersen. --
23.3 Consent of Coopers & Lybrand. --
24.1 Power of Attorney (included in the signature
pages of this Registration Statement). --
<FN>
______________________
(1) Filed as an Exhibit to the Registrant's Annual Report on
Form 10-K for the year ended November 30, 1990 and
incorporated herein by reference.
(2) Filed as an Exhibit to the Registrant's Registration
Statement on Form S-1 (File No. 33-14013) on May 5, 1987 and
incorporated herein by reference.
</TABLE>
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<PAGE> 1
EXHIBIT 5.1
-----------
May 23, 1994
Genetics Institute, Inc.
87 CambridgePark Drive
Cambridge, MA 02140
Re: 1991 Employee Stock Purchase Plan
---------------------------------
Ladies and Gentlemen:
We have assisted in the preparation of a Registration
Statement on Form S-8 (the "Registration Statement") to be filed
with the Securities and Exchange Commission relating to 300,000
Depositary Shares, each representing one share of Common Stock,
$.01 par value per share, subject to a call option and evidenced
by a depositary receipt (the "Depositary Shares"), of Genetics
Institute, Inc., a Delaware corporation (the "Company"), issuable
under the Company's 1991 Employee Stock Purchase Plan (the
"Plan").
We have examined the Restated Certificate of Incorporation of
the Company, the Restated By-laws of the Company, and originals,
or copies certified to our satisfaction, of all pertinent records
of the meetings of the directors and stockholders of the Company,
the Registration Statement and such other documents relating to
the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed
the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified or
photostatic copies, and the authenticity of the originals of such
latter documents.
<PAGE> 2
Genetics Institute, Inc.
May 23, 1994
Page 2
Based on the foregoing, we are of the opinion that the
Company has duly authorized for issuance the shares of its Common
Stock covered by the Registration Statement to be issued under the
Plan, as described in the Registration Statement, and such shares,
when issued in accordance with the terms of the Plan, will be
legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the
Securities and Exchange Commission in connection with the
Registration Statement.
Very truly yours,
HALE AND DORR
<PAGE> 1
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated December 22, 1993
incorporated by reference in Genetics Institute, Inc.'s Form 10-K for the year
ended November 30, 1993 and to all references to our Firm included in this
registration statement.
ARTHUR ANDERSEN & CO.
Boston, Massachusetts
May 20, 1994
<PAGE> 1
EXHIBIT 23.3
------------
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Genetics Institute, Inc. on Form S-8 of our reports dated December 29, 1992, on
our audits of the consolidated financial statements and financial statement
schedules of Genetics Institute, Inc. and Subsidiaries as of November 30, 1992,
and for the years ended November 30, 1992 and 1991, which reports are
incorporated by reference in Genetics Institute, Inc. 1993 Annual Report on
Form 10-K.
COOPERS & LYBRAND
Boston, Massachusetts
May 20, 1994
