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As filed with the Securities and Exchange Commission on June 22, 1999
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)
<TABLE>
<S> <C>
MASSACHUSETTS 06-1047163
(State or other jurisdiction of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices)
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1999 EMPLOYEE STOCK PURCHASE 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:
PAUL M. KINSELLA, 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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<S> <C> <C> <C> <C>
- ---------------------------------- -------------------- -------------------- --------------------- ------------------
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price per aggregate offering Amount of
securities to be registered registered share price registration fee
- ---------------------------------- -------------------- -------------------- --------------------- ------------------
Genzyme General Division Common
Stock, $0.01 par value 500,000 shares (1) $44.72(2) $22,360,000 $6,216.08
- ---------------------------------- -------------------- -------------------- --------------------- ------------------
Genzyme Tissue Repair Division
Common Stock, $0.01 par value 500,000 shares (1) $2.08(2) $1,040,000 $289.12
- ---------------------------------- -------------------- -------------------- --------------------- ------------------
</TABLE>
(1) This Registration Statement registers an additional 500,000 shares of
Genzyme General Division Common Stock ("GENZ Stock") and 500,000 shares of
Genzyme Tissue Repair Division Common Stock ("GZTR Stock") under the 1999
Employee Stock Purchase Plan. 89,299 shares of GENZ Stock, 1 share of GZTR
Stock and 500,000 shares of Genzyme Molecular Oncology Division Common
Stock have previously been registered under the 1990 Employee Stock
Purchase Plan, which was replaced by the 1999 Employee Stock Purchase Plan,
effective as of March 24, 1999.
(2) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h)(i) and based upon the average of the high
and low sale prices on June 15, 1999 for both the GENZ Stock and the GZTR
Stock, each as reported by the Nasdaq National Market System.
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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) Genzyme Corporation's Annual Report on Form 10-K filed with the
Commission on March 31, 1999.
(b) Genzyme Corporation's Quarterly Report on Form 10-Q filed with the
Commission on May 17, 1999.
(c) Genzyme Corporation's Current Reports on Form 8-K filed with the
Commission on March 17, 1999 and June 11, 1999.
(d) The description of the Genzyme General Division Common Stock ("GENZ
Stock") and Genzyme Tissue Repair Division Common Stock ("GZTR Stock"),
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.
(e) The description of the GENZ Stock Purchase Rights and GZTR Stock
Purchase Rights contained in the Registrant's Registration Statement on Form
8-A/A filed on June 11, 1999, 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 GENZ Stock and GZTR Stock offered hereunder have been sold or which
deregisters all shares of GENZ Stock and GZTR 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 Genzyme the power to indemnify any director, officer, employee or
agent to whatever extent permitted by Genzyme's Articles of Organization,
By-Laws or a vote adopted by the holders of a majority of the shares entitled to
vote thereon, unless the proposed indemnitee has been adjudicated in any
proceeding not to have acted in good faith in the reasonable belief that his or
her actions were in the best interests of the corporation or, 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
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plan. Such indemnification may include payment by Genzyme 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 or she shall be adjudicated to be
not entitled to indemnification under the statute.
Article VI of Genzyme's By-Laws provides that Genzyme 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 or she may become involved by reason of his or her serving or having
served in such capacity (other than a proceeding voluntarily initiated by such
person unless he or she is successful on the merits, the proceeding was
authorized by the corporation or the proceeding seeks a declaratory judgment
regarding his or her own conduct); provided that no indemnification shall be
provided for any such person with respect to any matter as to which he or she
shall have been finally adjudicated in any proceeding not to have acted in good
faith in the reasonable belief that his or her action was in the best interests
of Genzyme or, to the extent such matter relates to service with respect to any
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan; and provided, further, that as to
any matter disposed of by a compromise payment by such person, pursuant to a
consent decree or otherwise, the payment and indemnification thereof have been
approved by Genzyme, which approval shall not unreasonably be withheld, or by a
court of competent jurisdiction. Such indemnification shall include payment by
Genzyme 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 or she 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.
Genzyme also has in place agreements with certain officers and
directors which affirm Genzyme'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 Genzyme's By-Laws.
Section 13(b)(1 1/2) of chapter 156B of the Massachusetts Business
Corporation Law provides that a corporation may, in its articles of
organization, eliminate a director's 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
Genzyme's 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.
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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. 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;
(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 herein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
3
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(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 June, 1999.
GENZYME CORPORATION
By: /s/ Michael S. Wyzga
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Michael S. Wyzga
Senior Vice President and Chief Financial Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Genzyme Corporation,
hereby severally constitute and appoint Henri A. Termeer, Michael S. Wyzga, 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:
SIGNATURE TITLE DATE
/s/ Henri A. Termeer Principal Executive June 22, 1999
- ------------------------------ Officer and Director
Henri A. Termeer
/s/ Michael S. Wyzga Principal Financial and June 22, 1999
- ------------------------------ Accounting Officer
Michael S. Wyzga
/s/ Constantine E. Anagnostopoulos Director June 22, 1999
- ----------------------------------
Constantine E. Anagnostopoulos
/s/ Douglas A. Berthiaume Director June 22, 1999
- ------------------------------
Douglas A. Berthiaume
/s/ Henry E. Blair Director June 22, 1999
- ------------------------------
Henry E. Blair
/s/ Robert J. Carpenter Director June 22, 1999
- ------------------------------
Robert J. Carpenter
/s/ Charles L. Cooney Director June 22, 1999
- ------------------------------
Charles L. Cooney
/s/ Henry R. Lewis Director June 22, 1999
- ------------------------------
Henry R. Lewis
5
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EXHIBIT INDEX
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EXHIBIT NUMBER DESCRIPTION
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, Massachusetts 02018
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
June 21, 1999
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 500,000 shares of
Genzyme General Division Common Stock, $0.01 par value and 500,000 shares of
Genzyme Tissue Repair Division Common Stock, $0.01 par value (collectively, the
"Shares"), offered pursuant to the provisions of the Company's 1999 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 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.
Very truly yours,
/s/ PALMER & DODGE LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Genzyme Corporation for its 1999 Employee Stock
Purchase Plan of our reports dated February 23, 1999 related to the financial
statements and financial statement schedules of Genzyme Corporation, Genzyme
General Division, Genzyme Tissue Repair Division and Genzyme Molecular Oncology
Division, which appear in Genzyme Corporation's 1998 Annual Report on Form
10-K.
We also hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Genzyme Corporation for its 1999 Employee Stock
Purchase Plan of our report dated June 9, 1999 related to the financial
statements and financial statement schedule of Genzyme Surgical Products
Division, which appear in Genzyme Corporation's Current Report on Form 8-K
dated June 11, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
June 21, 1999
