<PAGE> 1
As filed with the Securities and Exchange Commission on September 28, 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)
MASSACHUSETTS 06-1047163
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139
(Address of Principal Executive Offices)
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1997 EQUITY INCENTIVE 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
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------
Title of each Proposed maximum Proposed maximum
class of securities Amount to be offering price per aggregate offering Amount of
to be registered registered(1) share (2) price (2) registration fee
- --------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Genzyme Surgical Products 2,700,000 shares $6.125 $16,537,500 $4,597.43
Division Common Stock,
$0.01 par value
- --------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Plus such additional number of shares of Genzyme Surgical Products Division
Common Stock (the "GZSP Stock") as are required for issuance upon a stock
split, stock dividend or similar transaction. Includes associated purchase
rights which currently are evidenced by certificates for shares of GZSP
Stock and automatically trade with such shares.
(2) Estimated solely for the purpose of determining the registration fee and
computed pursuant to Rule 457(h)(1). The proposed maximum offering price
per share indicated equals the last per share sale price of the GZSP Stock
on September 23, 1999 as reported by the Nasdaq National Market.
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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 (except for the financial statements on pages
2-31 of Exhibit 13.1, which we restated and filed with the SEC on June 30, 1999
as Exhibit 99 to our Form 8-K), as amended by Form 10-K/A filed with the
Commission on June 30, 1999.
(b) Genzyme Corporation's Quarterly Reports on Form 10-Q filed
with the Commission on May 17, 1999 (except for pages 4-9 and 26-28 to the
extent the financial statements and related discussion relate to Genzyme
General, which we restated and filed with the SEC on June 30, 1999 as Exhibit
99 to our form 8-K) and August 16, 1999.
(c) Genzyme Corporation's Current Reports on Form 8-K filed with
the Commission on March 17, 1999, June 11, 1999, and June 30, 1999.
(d) The description of the Genzyme Surgical Products Division
Common Stock ("GZSP Stock") and GZSP Stock Purchase Rights contained in the
Registrant's Registration Statement on Form 8-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 GZSP Stock offered hereunder have been sold or which deregisters all
shares of GZSP 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 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.
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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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
See Exhibit Index immediately following the signature page.
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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.
(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
28th day of September 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-3 (including any
post-effective amendments thereto), and any related Rule 462(b) registration
statement or amendment 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
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/s/ Henri A. Termeer Principal Executive September 28, 1999
- --------------------------------- Officer and Director
Henri A. Termeer
/s/ Michael S. Wyzga Principal Financial September 28, 1999
- --------------------------------- and Accounting Officer
Michael S. Wyzga
Director
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Constantine E. Anagnostopoulos
/s/ Douglas A. Berthiaume Director September 28, 1999
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Douglas A. Berthiaume
/s/ Henry E. Blair Director September 28, 1999
- ---------------------------------
Henry E. Blair
/s/ Robert J. Carpenter Director September 28, 1999
- ---------------------------------
Robert J. Carpenter
/s/ Charles L. Cooney Director September 28, 1999
- ---------------------------------
Charles L. Cooney
/s/ Henry R. Lewis Director September 28, 1999
- ---------------------------------
Henry R. Lewis
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Restated Articles of Organization of Genzyme, as amended. Filed as
Exhibit 1 to Genzyme's Registration Statement on Form 8-A filed
with the Commission on June 18, 1997, and incorporated herein by
reference.
4.2 By-laws of Genzyme. Filed as Exhibit 3.2 to Genzyme's Form 8-K
dated December 31, 1991 (File No. 0-14680), and incorporated
herein by reference.
4.3 Indenture, dated as of May 22, 1998, between Genzyme and State
Street Bank and Trust Company, as Trustee, including the form of
Note. Filed as Exhibit 4.3 to Genzyme's Registration Statement on
Form S-3 (File No. 333-59513) and incorporated herein by
reference.
4.4 Registration Rights Agreement, dated as of May 19, 1998, among
Genzyme, Credit Suisse First Boston Corporation, Goldman, Sachs &
Co. and Cowen & Company. Filed as Exhibit 4.4 to Genzyme's
Registration Statement on Form S-3 (File No. 333-59513) and
incorporated herein by reference.
4.5 Purchase Agreement, dated as of May 19, 1998, among Genzyme,
Credit Suisse First Boston Corporation, Goldman, Sachs & Co. and
Cowen & Company. Filed as Exhibit 4.5 to Genzyme's Registration
Statement on Form S-3 (File No. 333-59513) and incorporated herein
by reference.
4.6 Series Designation for Genzyme Molecular Oncology Division Common
Stock, $.01 par value. Filed as Exhibit 2 to Genzyme's
Registration Statement on Form 8-A filed with the Commission on
June 18, 1997, and incorporated herein by reference.
4.7 Series Designation for the Series A, Series B, Series C and Series
D Junior Participating Preferred Stock, $.01 par value, of
Genzyme. Filed as Exhibit 2 to Amendment No. 1 to Genzyme's
Registration Statement on Form 8-A filed with the Commission on
June 11, 1999, and incorporated herein by reference.
4.8 Amended and Restated Renewed Rights Agreement dated as of June 10,
1999 between Genzyme and American Stock Transfer and Trust
Company. Filed as Exhibit 4 to Amendment No. 1 to Genzyme's
Registration Statement on Form 8-A dated June 11, 1999, and
incorporated herein by reference.
4.9 Warrant issued to Richard Warren, Ph.D. Filed as Exhibit 4 to the
Form 8-K of IG Laboratories, Inc. dated October 11, 1990 (File No.
0-18439), and incorporated herein by reference.
4.10 Form of Genzyme General Division Convertible Debenture dated
August 29, 1998, including a schedule with respect thereto filed
pursuant to Instruction 2 to Item 601 of Regulation S-K. Filed as
Exhibit 4.15 to Genzyme's Registration Statement on Form S-3 (File
No. 333-64901) and incorporated herein by reference.
4.11 Registration Rights Agreement dated as of August 29, 1997 by and
among Genzyme and the entities listed on the signature pages
thereto. Filed as Exhibit 10.8 to Genzyme's Form 10-Q for the
quarter ended September 30, 1997, and incorporated herein by
reference.
4.12 Warrant Agreement between Genzyme and Comdisco, Inc. Filed as
Exhibit 10.22 to a Form 10 of PharmaGenics, Inc. (File No.
0-20138), and incorporated herein by reference.
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4.13 Form of Genzyme Corporation Convertible Note dated February 28,
1997 issued to Credit Suisse First Boston (Hong Kong) Ltd. Filed
as Exhibit 4.14 to Genzyme's Form 10-K/A for the year ended
December 31, 1997 filed with the Commission on April 27, 1998, and
incorporated herein by reference.
4.14 Series Designation for Genzyme Surgical Products Division Common
Stock, $.01 par value. Filed as Exhibit 2 to Genzyme's
Registration Statement on Form 8-A filed with the Commission on
June 11, 1999, and incorporated herein by reference.
5 Opinion of Palmer & Dodge LLP. Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to
Genzyme. Filed herewith.
23.2 Consent of Palmer & Dodge LLP (contained in Exhibit 5).
24 Power of Attorney (included on the signature page hereto).
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Exhibit 5
PALMER & DODGE LLP
One Beacon Street
Boston, Massachusetts 02018
Telephone: (617) 573-0100 Facsimile: (617) 227-4420
September 28, 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 2,700,000 shares of
Genzyme Surgical Products Division Common Stock, $0.01 par value (the "Shares"),
offered pursuant to the provisions of the Company's 1997 Equity Incentive 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
---------------------------
PALMER & DODGE LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Genzyme Corporation of: our reports dated February
23, 1999 relating to the financial statements and financial statement schedules
of Genzyme Corporation, Genzyme Tissue Repair and Genzyme Molecular Oncology
which appear in Genzyme Corporation's Annual Report on Form 10-K for the year
ended December 31, 1998; our report dated June 9, 1999 relating to the financial
statements and financial statement schedule of Genzyme Surgical Products which
appears in Genzyme Corporation's Form 8-K as filed on June 11, 1999; our report
dated June 28, 1999 relating to the financial statements and financial statement
schedule of Genzyme General which appears in Genzyme Corporation's Form 8-K as
filed on June 30, 1999; and our report dated June 16, 1999 relating to the
financial statements of the Genzyme Retirement Savings Plan which appears in
Genzyme Corporation's Form 10-K/A as filed on June 30, 1999.
/s/ PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
September 28, 1999
