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As filed with the Securities and Exchange Commission on November 16, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ORGANOGENESIS INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 04-2871690
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
150 DAN ROAD, CANTON, MASSACHUSETTS 02021
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(Address of principal executive offices) (Zip Code)
1995 STOCK OPTION PLAN
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(Full title of the Plan)
STEVEN D. SINGER, ESQ., HALE AND DORR, 60 STATE STREET, BOSTON, MASSACHUSETTS
02109
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(Name and address of agent for service)
(617) 526-6000
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(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed
Title of Securities Amount Maximum Proposed Amount of
to be to be Offering Price Maximum Aggregate Registration
Registered Registered Per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,500,000 Shares $19.38 $29,070,000 $5,814.00
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<FN>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended,
and based upon the average of the high and low price of the Registrant's Common
Stock on the American Stock Exchange on November 14, 1995.
</TABLE>
Page 1 of 10 pages.
Exhibit Index begins on page 8.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
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The information required by Part I is included in documents
sent or given to participants in the 1995 Stock Option Plan of
Organogenesis 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.
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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 on file with the Securities and
Exchange Commission, are incorporated in this Registration
Statement by reference:
(a) The Registrant's latest annual report filed
pursuant to Section 13(a) or 15(d) of the Exchange Act or the
latest prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements for
the Registrant's latest fiscal year for which such statements
have been filed.
(b) 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 Registrant document referred to in (a) above.
(c) The description of the Common Stock, 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.
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 securities offered hereby have been sold or which deregisters
all such securities 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.
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Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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The validity of the securities hereby registered will be
passed upon by Hale and Dorr, Boston, Massachusetts. Steven D.
Singer, Esq., a partner of Hale and Dorr, serves as Secretary to
the Registrant.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law empowers
a Delaware corporation to indemnify any person who is, or is
threatened to be made, a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of such corporation) by reason of the fact that such person
is or was an officer or director of such corporation, or is or was
serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action,
suit or proceeding, provided that he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his
conduct was unlawful. A Delaware corporation may indemnify
officers and directors in an action by or in the right of the
corporation under the same conditions, except that no
indemnification is permitted without judicial approval if the
officer or director is adjudged to be liable for negligence or
misconduct in the performance of his duty to the corporation.
Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses which he
actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any
other rights to which an officer or director may be entitled under
a corporation's by-laws, an agreement, vote or otherwise.
Section 102(b)(7) of the Delaware General Corporation Law, as
amended, permits a corporation to provide in its certificate of
incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for
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monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of
loyalty to the corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174
of the Delaware General Corporation Law, or (iv) for any
transaction from which the director derived an improper personal
benefit.
The Company's Restated Certificate of Incorporation, as
amended, provides (i) for indemnification to the fullest extent
permitted by law, (ii) that such indemnification provisions shall
be deemed to be contractual and (iii) that the Company may advance
litigation expenses to an officer or director prior to the final
disposition of an action.
The Company's Restated Certificate of Incorporation, as
amended, also provides that directors shall not be personally
liable to the Company or its stockholders for monetary damages to
the extent permitted by Section 102(b)(7) of the Delaware General
Corporation Law.
The Company has a Directors and Officers liability insurance
policy that insures the Company's directors and officers against
certain liabilities.
Item 7. Exemption From Registration Claimed.
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Not applicable.
Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
Item 9. Undertakings.
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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 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.
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(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 Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) 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 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.
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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 Boston, Commonwealth of Massachusetts, on the 16th day of
November, 1995.
ORGANOGENESIS INC.
By: /S/ HERBERT M. STEIN
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Herbert M. Stein
Chairman and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Organogenesis
Inc., hereby severally constitute and appoint Herbert M. Stein and
Steven D. Singer, and each of them singly, our true and lawful
attorneys with full power to them, to sign for us and in our
names, in the capacities indicated below, the Registration
Statement filed herewith, and any and all 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 Organogenesis Inc. to comply with the Securities Act of
1933, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they
may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
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.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/S/ HERBERT M. STEIN Chief Executive Officer, November 16, 1995
- ---------------------- Chairman and Director
Herbert M. Stein (Principal Executive
Officer Principal
Financial Officer and
Principal Accounting
Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/S/ DAVID T. ROVEE President, Chief Operating November 16, 1995
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David T. Rovee Officer, Chief Scientific
Officer and Director
/S/ RICHARD S. CRESSE Director November 16, 1995
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Richard S. Cresse
/S/ WILLIAM J. HOPKE Director November 16, 1995
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William J. Hopke
/S/ MARGUERITE A. PERIT Director November 16, 1995
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Marguerite A. Perit
/S/ ANTON E. SCHRAFL Director November 16, 1995
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Anton E. Schrafl
/S/ BJORN R. OLSEN Director November 16, 1995
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Bjorn R. Olsen
</TABLE>
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<TABLE>
INDEX TO EXHIBITS
<CAPTION>
Exhibit
Number Exhibit Page
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<S> <C> <C>
4.1 Restated Certificate of Incorporation of the n/a
Registrant (Previously filed with the Commission
as an Exhibit to the Registrant's Registration
Statement on Form S-3, File No. 33-40287, which
was filed with the Commission on April 30, 1991
and is incorporated herein by reference)
4.2 By-Laws, as amended, of the Registrant n/a
(Previously filed with the Commission as an
Exhibit to the Registrant's Annual Report on
Form 10-K, as amended, File No. 0-15246,
which was originally filed with the Commission
March 31, 1987 and is incorporated herein by
reference)
4.3 Rights Agreement, dated as of September 1, 1995,
between the Registrant and American Stock
Transfer & Trust Company, which includes:
(i) Exhibit A, the Form of Certificate of
Designations; (ii) Exhibit B, the Form of Rights
Certificate; and (iii) Exhibit C, the Summary
of Rights to purchase Series B Preferred Stock
(previously filed with the Commission as an
Exhibit to the Form 8-K filed by the Registrant
with the Commission on August 31, 1995) n/a
5.1 Opinion of Hale and Dorr 9
23.1 Consent of Hale and Dorr (included in
Exhibit 5.1)
23.2 Consent of Coopers & Lybrand L.L.P. 10
24.1 Powers of Attorney (included on the
signature page of this Registration
Statement)
</TABLE>
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Exhibit 5.1
November 16, 1995
Organogenesis Inc.
150 Dan Road
Canton, MA 02021
Ladies and Gentlemen:
This opinion is furnished to you in connection with a
Registration Statement on Form S-8 (the "Registration Statement"),
to be filed with the Securities and Exchange Commission, relating
to 1,500,000 shares of common stock, $.01 par value per share (the
"Shares"), of Organogenesis Inc. (the "Company"), issuable under
the Company's 1995 Stock Option Plan (the "Plan").
We have examined the Restated Certificate of Incorporation
and the By-Laws of the Company and all amendments thereto, the
Registration Statement and originals, or copies certified to our
satisfaction, of such records of meetings, written actions in lieu
of meetings, or resolutions adopted at meetings, of the directors
of the Company, and such other documents and instruments as in our
judgment are necessary or appropriate to enable us to render the
opinions expressed below.
In examination of the foregoing documents, we have assumed
(i) the genuineness of all signatures and the authenticity of all
documents submitted to us as originals, (ii) the conformity to
original documents of all documents submitted to us as conformed
or photostatic copies, and (iii) the authenticity of the originals
of such latter documents.
Based upon and subject to the foregoing, we are of the
opinion that the Shares have been duly and validly authorized for
issuance under the Plan and the Shares, when issued against
payment therefor in accordance with the terms of the Plan, will
be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit
to the Registration Statement.
Very truly yours,
HALE AND DORR
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Exhibit 23.2
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CONSENT OF INDEPENDENT ACCOUNTANTS
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We hereby consent to the incorporation by reference in the Registration
Statement of Organogenesis Inc. (the "Company") on this Form S-8 pertaining to
its 1995 Stock Option Plan of our report dated February 15, 1995, on our audits
of the consolidated financial statements of Organogenesis Inc. as of December
31, 1994 and 1993 and for each of the three years in the period ended December
31, 1994 which report is included in the Company's Report on Form 10-K filed
with the Securities and Exchange Commission on March 29, 1995. We also consent
to the reference to our Firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
November 14, 1995
