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As filed with the Securities and Exchange Commission on September 23, 1998
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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GENZYME CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C>
MASSACHUSETTS 06-1047163
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
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ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices)
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1998 DIRECTOR STOCK OPTION PLAN
(Full Title of the Plan)
PETER WIRTH, ESQ.
Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
(617) 252-7500
(Name, address and telephone number of agent for service)
with copies to:
MAUREEN P. MANNING, ESQ.
Palmer & Dodge LLP
One Beacon Street
Boston, Massachusetts 02108
(617) 573-0100
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Proposed Proposed maximum
Title of each class of securities to Amount to be maximum offering aggregate offering Amount of
be registered registered price per share price registration fee
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<S> <C> <C> <C> <C>
Genzyme General Division Common
Stock, $0.01 par value 120,400 shares(1) $29.6875(2) $3,574,375 $1,054.44
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Genzyme Tissue Repair Division
Common Stock, $0.01 par value 100,000 shares(1) $3.00(2) $300,000 $88.50
- ----------------------------------------------------------------------------------------------------------------------
Genzyme Molecular Oncology Division
Common Stock, $.01 par value 70,000 shares(1) $7.00(3) $490,000 $144.55
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</TABLE>
(1) This Registration Statement registers an additional 120,400 shares of
Genzyme General Division Common Stock ("GGD Stock"), 100,000 shares of
Genzyme Tissue Repair Division Common Stock ("GTR Stock") and 70,000
shares of Genzyme Molecular Oncology Division Common Stock ("GMO Stock")
under the 1998 Director Stock Option Plan. 189,600, 100,000 and 70,000
shares of GGD Stock, GTR Stock and GMO Stock, respectively, have
previously been registered under the 1988 Director Stock Option Plan,
which was replaced by the 1998 Director Stock Option Plan, effective as
of March 6, 1998.
(2) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h) and based upon the average of the high
and low sale prices on September 17, 1998 for both the GGD Stock, and the
GTR Stock, each as reported by the Nasdaq National Market System.
(3) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h)(1) of the Securities Act of 1933, as
amended. Pursuant to Rule 457(h)(1), the maximum offering price per share
of the GMO Stock offered hereby is equal to the exercise price of the
options for the GMO Stock.
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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 latest annual report on Form 10-K filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
(b) All other reports of the registrant 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 referred to in (a) above.
(c) The description of the Genzyme General Division Common Stock ("GGD
Stock"), Genzyme Tissue Repair Division Common Stock ("GTR Stock") and Genzyme
General Molecular Oncology Division Common Stock ("GMO Stock"), GGD Stock
Purchase Rights, GTR Stock Purchase Rights and GMO Stock Purchase Rights
contained in the Registrant's Registration Statement on Form 8-A filed on June
18, 1997, including any further amendment or report filed hereafter for the
purpose of updating such description.
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, prior to the filing of a post-effective amendment that indicates that all
shares of GGD Stock, GTR Stock and GMO Stock offered hereunder have been sold or
which deregisters all shares of GGD Stock, GTR Stock and GMO 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 67 of chapter 156B of the Massachusetts Business Corporation
Law grants the Registrant the power to indemnify any director, officer, employee
or agent to whatever extent permitted by the Registrant's Restated Articles of
Organization, By-Laws or a vote adopted by the holders of a majority of the
shares entitled to vote thereon, if such indemnitee acted (a) in good faith in
the reasonable belief that his action was in the best interests of the
corporation or (b) to the extent that the matter for which indemnification is
sought relates to service with respect to an employee benefit plan, in the best
interests of the participants or beneficiaries of such employee benefit plan.
Such indemnification may include payment by the Registrant of expenses incurred
in defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, upon receipt of an undertaking by the
person indemnified to repay such payment if he shall be adjudicated to be not
entitled to indemnification under the statute.
Article VI of the Registrant's By-Laws provides that the Registrant
shall, to the extent legally permissible, indemnify each person who may serve or
who has served at any time as a director or officer of the corporation or of any
of its subsidiaries, or who at the request of the corporation may serve or at
any time has served as a director, officer or trustee of, or in a similar
capacity with, another organization or an employee benefit plan, against all
expenses and liabilities (including counsel fees, judgments, fines, excise
taxes, penalties and amounts payable in settlements) reasonably incurred by or
imposed upon such person in connection with any threatened, pending or completed
action, suit or other proceeding, whether civil, criminal, administrative or
investigative, in which he may become involved by reason of his serving or
having served in such capacity (other than a proceeding voluntarily
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initiated by such person unless he is successful on the merits, the proceeding
was authorized by the corporation or the proceeding seeks a declaratory judgment
regarding his own conduct). Such indemnification shall include payment by the
Registrant of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he shall be adjudicated to be not entitled to indemnification under Article
VI, which undertaking may be accepted without regard to the financial ability of
such person to make repayment.
The indemnification provided for in Article VI is a contract right
inuring to the benefit of the directors, officers and others entitled to
indemnification. In addition, the indemnification is expressly not exclusive of
any other rights to which such director, officer or other person may be entitled
by contract or otherwise under law, and inures to the benefit of the heirs,
executors and administrators of such a person.
The Registrant also has in place agreements with certain officers and
directors which affirm the Registrant's obligation to indemnify them to the
fullest extent permitted by law and contain various procedural and other
provisions which expand the protection afforded by the Registrant's By-Laws.
Section 13(b)(1/2) of chapter 156B of the Massachusetts Business
Corporation Law provides that a corporation may, in its Articles of
Organization, eliminate the directors' personal liability to the corporation and
its stockholders for monetary damages for breaches of fiduciary duty, except in
circumstances involving (i) a breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
unauthorized distributions and loans to insiders, and (iv) transactions from
which the director derived an improper personal benefit. Section VI.C.5 of the
Registrant's Restated Articles of Organization provides that no director shall
be personally liable to the corporation or its stockholders for monetary damages
for any breach of fiduciary duty as a director, except to the extent that such
exculpation is not permitted under the Massachusetts Business Corporation Law as
in effect when such liability is determined.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index immediately following the signature page.
ITEM 9. UNDERTAKINGS.
(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:
(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
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(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 herein, 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.
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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, Commonwealth of Massachusetts, on this
22nd day of September, 1998.
GENZYME CORPORATION
By: /s/ David J. McLachlan
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David J. McLachlan
Executive Vice President,
Finance and Chief Financial
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Genzyme Corporation,
hereby severally constitute and appoint Henri A. Termeer, David J. McLachlan,
Evan M. Lebson and Peter Wirth, 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/ Henri A. Termeer President, Chief Executive September 22, 1998
- ------------------------------------ Officer and Director
Henri A. Termeer (Principal Executive Officer)
/s/ David J. McLachlan Executive Vice President, September 22, 1998
- ------------------------------------ Finance and Chief Financial
David J. McLachlan Officer (Principal Financial
and Accounting Officer)
/s/ Constantine E. Anagnostopoulos Director September 22, 1998
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Constantine E. Anagnostopoulos
/s/ Douglas A. Berthiaume Director September 22, 1998
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Douglas A. Berthiaume
/s/ Henry E. Blair Director September 22, 1998
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Henry E. Blair
/s/ Robert J. Carpenter Director September 22, 1998
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Robert J. Carpenter
/s/ Charles L. Cooney Director September 22, 1998
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Charles L. Cooney
/s/ Henry R. Lewis Director September 22, 1998
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Henry R. Lewis
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EXHIBIT INDEX
Exhibit Number Description
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5 Opinion of Palmer & Dodge LLP as to the legality of the
securities registered hereunder.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants.
23.2 Consent of Palmer & Dodge LLP (contained in Exhibit 5).
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Exhibit 5
PALMER & DODGE LLP
One Beacon Street, Boston, MA 02108-3190
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
September 23, 1998
Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
We are rendering this opinion in connection with the Registration
Statement on Form S-8 (the "Registration Statement") filed by Genzyme
Corporation (the "Company") with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof. The Registration Statement relates to 120,400 shares of
Genzyme General Division Common Stock, $0.01 par value, 100,000 shares of
Genzyme Tissue Repair Division Common Stock, $0.01 par value, and 70,000 shares
of Genzyme Molecular Oncology Division Common Stock, $.01 par value
(collectively, the "Shares"), offered pursuant to the provisions of the
Company's 1998 Director Stock Option 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 authorization, 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 duly authorized,
validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as a part of the
Registration Statement and to the reference to our firm under Item 5 thereof.
Very truly yours,
/s/ Palmer & Dodge LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Genzyme Corporation for its 1998 Director Stock Option Plan of our
reports dated February 27, 1998 on our audits of the consolidated financial
statements and financial statement schedule of Genzyme Corporation, the combined
financial statements and financial statement schedule of Genzyme General
Division, the combined financial statements and financial statement schedule of
Genzyme Tissue Repair Division, and the combined financial statements of Genzyme
Molecular Oncology Division as of December 31, 1997 and 1996 and for each of the
three years in the period ended December 31, 1997, which reports are included in
Genzyme Corporation's 1997 Annual Report on Form 10-K, as amended.
/s/ PricewaterhouseCoopers LLP
Boston, Massachusetts
September 22, 1998
