<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 17, 1996
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
ORGANOGENESIS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
DELAWARE 04-2871690
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
----------------
150 DAN ROAD,
CANTON, MASSACHUSETTS 02021
(617) 575-0775
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
HERBERT M. STEIN, CHIEF EXECUTIVE OFFICER
ORGANOGENESIS INC.
150 DAN ROAD,
CANTON, MASSACHUSETTS 02021
(617) 575-0775
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copy to:
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: At the
discretion of the Selling Stockholders.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is registering additional securities pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. 333- [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. 333- [_]
If delivery of the prospectus is expected to be made pursuant Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE(1) AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED(1) PER SHARE OFFERING PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, $.01 par
value.................. 234,375 shares $20.25 $4,746,093.75 $1,636.58
</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) of the Securities Act of 1933, as amended, on the basis of
the average of the high and low sales prices of the Registrant's Common
Stock on the American Stock Exchange on May 15, 1996.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), SHALL DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR +
+THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO REGISTRATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION
P R O S P E C T U S
[LOGO] 234,375 SHARES
ORGANOGENESIS INC.
COMMON STOCK
-----------
The shares of Common Stock, $0.01 par value per share (the "Common Stock"),
of Organogenesis Inc. ("Organogenesis" or the "Company") covered by this
Prospectus are issued and outstanding shares which may be offered and sold,
from time to time, for the account of Fondation Danonia and Gerard Klauer
Mattison & Co. (the "Selling Stockholders"). See "The Selling Stockholders."
All of the shares offered hereunder are to be sold by the Selling Stockholders.
The Company will not receive any of the proceeds from the sale of the shares by
the Selling Stockholders.
-----------
THE SECURITIES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE "RISK
FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS.
-----------
THESE SECURITIES HAVE NOT BEEN APPROVED OR
DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
NOR HAS THE COMMISSION OR ANY STATE
SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is May 17, 1996.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") are incorporated herein by reference:
(1) the description of the Company's capital stock contained in Organogenesis'
Registration Statement on Form 8-A filed on April 7, 1988; (2) the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1995; and
(3) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1996.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") subsequent to the date hereof and prior to the
termination of the offering of the Common Stock offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a part hereof
from the date of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent
that a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company will provide without charge to each person to whom this
Prospectus is delivered, upon written or oral request of such person, a copy
of any or all of the foregoing documents incorporated by reference into this
Prospectus (without exhibits to such documents other than exhibits
specifically incorporated by reference into such documents). Requests for such
copies should be directed to Organogenesis Inc., Donna L. Abelli, Chief
Financial Officer, 150 Dan Road, Canton, Massachusetts 02021; telephone (617)
575-0775.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Exchange Act
and in accordance therewith files reports and other information with the
Commission. Reports, proxy statements and other information filed by the
Company with the Commission pursuant to the informational requirements of the
Exchange Act may be inspected and copied at the public reference facilities
maintained by the Commission at the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
regional offices located at 7 World Trade Center, Suite 1300, New York, New
York 10048, and at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661-2511. Copies of such materials also may be obtained
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The Common Stock of the Company is
traded on the American Stock Exchange. Reports and other information
concerning the Company may be inspected at the offices of the American Stock
Exchange, 86 Trinity Place, New York, NY 10006-1181.
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the shares of Common Stock offered hereby. This Prospectus does not
contain all the information set forth in the Registration Statement and the
exhibits and schedules thereto, as certain items are omitted in accordance
with the rules and regulations of the Commission. For further information
pertaining to the Company and the shares of Common Stock offered hereby,
reference is made to such Registration Statement and the exhibits and
schedules thereto, which may be inspected without charge at the office of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, and copies of
which may be obtained from the Commission at prescribed rates.
2
<PAGE>
THE COMPANY
Organogenesis designs, develops and manufactures innovative medical
therapeutics using living human cells and natural connective tissue
components. Organogenesis was the first company founded to develop and
commercialize therapies based on innovations in tissue engineering. Tissue
engineering is a relatively new discipline focused on developing specialized
biomaterials and cellular constructs to assist, repair, regenerate, or replace
diseased or damaged organs. An understanding of the biology of cells and the
structure and function of the extracellular matrix, and the critical
interactions between the two, is needed to fully exploit the potential of
tissue engineering. The Company's leadership in combining these technologies
has resulted in a wide variety of product opportunities, including
Graftskin(TM), the Company's full-thickness skin replacement product.
The Company has cell science and connective tissue science technologies and
expertise which it is using in a number of areas including wound care,
urology, cardiovascular surgery and general surgery. It is also exploring
additional opportunities in the areas of plastic surgery, orthopedics,
ophthalmalogy and oral cavity medicine. The Company's most advanced product,
Graftskin(TM), is a Living Skin Equivalent (LSE(TM)) for the treatment of skin
wounds, including wounds traditionally treated with skin, such as burn wounds
and wounds due to dermatological surgery, as well as the broader market of
wounds which would benefit from a biologically active cell therapy, such as
chronic wounds (e.g. venous stasis ulcers, diabetic ulcers and decubitus
ulcers). Graftskin(TM) was found to provide biological wound closure and was
thus able to contribute directly to the wound healing process.
In the Graftskin(TM) pivotal clinical trial for chronic venous ulcers, the
results showed that Graftskin(TM) achieved 100% wound closure in more
patients, and achieved it faster, than standard compression therapy, the
current standard of care. Graftskin(TM) was found to be highly effective even
in difficult-to-heal ulcers, and was found to have an excellent safety
profile, with no sign of tissue rejection. The Company is currently initiating
a pivotal clinical trial to study Graftskin(TM) in the treatment of diabetic
ulcers, and expects to initiate a pivotal clinical trial to study
Graftskin(TM) in the treatment of decubitus ulcers within the next twelve
months. The Company has completed the patient enrollment and efficacy
evaluation phase of a pivotal clinical trial to study Graftskin(TM) in the
treatment of burn wounds and is currently doing safety follow-up and data
analysis. Available data for this study suggests that meshed Graftskin(TM)
placed over meshed autograft may function as a skin replacement. Additionally,
the Company has completed patient enrollment and the efficacy and safety
evaluation phase for a pivotal clinical trial to study Graftskin(TM) in the
treatment of wounds created by dermatological surgery and the data are being
analyzed. Interim results suggest that Graftskin(TM)'s treatment provides
immediate closure, resurfacing of the wound with epithelium, rapid healing and
good cosmetic results.
In 1995, the Company submitted to the United States Food and Drug
Administration ("FDA"), and the FDA accepted for filing, the Graftskin(TM)
Premarket Approval Application ("PMA") for use in the treatment of venous
ulcers. The official filing date for this PMA was October 4, 1995. The FDA has
granted expedited review status to this PMA, which means it receives priority
in review over pending device regulatory applications. PMA applications under
expedited review status are still subject to all other controls and
requirements applicable to PMAs in the standard review process.
On January 17, 1996, Organogenesis and Sandoz Ltd. ("Sandoz") jointly
announced that Sandoz has been granted exclusive worldwide marketing rights
for Graftskin(TM), while Organogenesis has exclusive global manufacturing
rights. Organogenesis will receive royalties on all Graftskin(TM) sales,
payment for each unit supplied to Sandoz and equity payments, research support
payments and milestone payments potentially totaling $37.5 million.
In addition to Graftskin(TM), the Company has a number of other products in
development which capitalize on its experience in cell biology and connective
tissue sciences. Products in the preclinical stage include an injectable
product for the treatment of female urinary incontinence, a small diameter
graft for use in coronary artery by-pass procedures, a coating for
endovascular stents, a surgical repair patch for use in procedures such as
hernia repair, and a soft tissue augmentation product for use in plastic
surgery procedures. These products are being designed to allow the patient's
system to gradually replace the Organogenesis material with his or her own
tissue and thus provide permanence of benefit without permanence of product.
The Company's research programs also include such fields as cell
transplantation, organ assist devices and oral medicine.
The Company was organized as a Delaware corporation in 1985. The Company's
executive offices are located at 150 Dan Road, Canton, Massachusetts 02021 and
its telephone number is (617) 575-0775.
3
<PAGE>
RISK FACTORS
In evaluating the Company's business, prospective investors should carefully
consider the following factors, in addition to the other information contained
in this Prospectus.
UNCERTAINTY OF SUCCESSFUL COMMERCIALIZATION
The Company has not begun to market or generate revenues from the
commercialization of products. The products under development by the Company
will require significant additional research and development efforts,
including extensive clinical testing and regulatory approval, prior to
commercial use. The Company's potential products are subject to the risks of
failure inherent in the development of medical products based on new
technologies. These risks include the possibilities that the Company's
therapeutic approach will not be successful; that any or all of the Company's
potential products will be found to be unsafe, ineffective, toxic or otherwise
fail to meet applicable regulatory standards or receive necessary regulatory
clearances; that the potential products, if safe and effective, will be
difficult to develop into commercially viable products, to manufacture on a
large scale, be uneconomical to market, or fail to obtain acceptance by the
medical community; that proprietary rights of third parties will preclude the
Company from marketing such products; or that third parties will market
superior or equivalent products.
FUTURE CAPITAL NEEDS; UNCERTAINTY OF ADDITIONAL FUNDING
The Company will utilize working capital in 1996 related to ongoing product
research and development activities, conducting preclinical and clinical
trials, enhancement of proprietary manufacturing technologies, manufacturing
scale-up, filing and maintaining patents, expansion of business development,
public and investor relations programs and general and administrative
resources. These activities will require substantial additional financial
resources before the Company can expect to realize a net profit from product
sales. The Company has not had, and does not anticipate having, significant
revenue from the sale of its lead product, Graftskin(TM), before 1997, at the
earliest. While management believes that additional financing composed of
equity investments and funding provided under collaborative agreements will be
available to fund future operations, and are being pursued, there can be no
assurance that additional funds will be available when required on terms
acceptable to the Company. If funds are raised by issuing equity securities,
further dilution to existing stockholders will result. If adequate funds are
not available, the Company may be required to delay, reduce the scope of or
eliminate one or more of its research and development programs or to obtain
funds through entering into arrangements with collaborative partners or others
that may require the Company to issue additional equity or to relinquish
rights to certain technologies or product candidates that the Company would
not otherwise issue or relinquish. Based upon its current plans, the Company
believes that the future equity and research contributions from Sandoz,
together with existing working capital, will be sufficient to fund its
operations at least through the second quarter of 1997. However, the Company's
capital requirements may vary depending on numerous factors, including:
progress of the Company's research and development programs; time required to
obtain regulatory approvals; resources the Company devotes to self-funded
projects, proprietary manufacturing methods and advanced technologies; and the
demand for the Company's products, if and, when approved.
HISTORY OF LOSSES AND ACCUMULATED DEFICIT
The Company experienced net losses of $9.9 million, $10.4 million and $12.7
million for the years ended December 31, 1993, 1994 and 1995, respectively.
The Company's accumulated deficit at March 31, 1995 was $61.4 million. The
Company expects to incur additional losses as its research, development and
clinical trial programs continue to expand. The Company's ability to achieve a
profitable level of operations is dependent on successfully completing the
development of its products, obtaining required regulatory approvals, and
manufacturing of its products. Accordingly, the extent of future losses and
the time required to achieve profitability is highly uncertain. There can be
no assurance that the Company will achieve a profitable level of operations.
4
<PAGE>
RETENTION OF KEY PERSONNEL
Because of the specialized nature of the Company's business, the Company's
success will depend, in large part, on its continued ability to attract and
retain highly qualified scientific and business personnel and on its ability
to develop and maintain relationships with leading research institutions. The
competition for those relationships and for experienced scientists and
management personnel that exists among the numerous biotechnology,
pharmaceutical and healthcare companies, universities and nonprofit research
institutions is intense. Failure of the Company to attract and retain a
sufficient number of qualified scientific and business personnel could
adversely affect the Company's business and future prospects.
PATENTS AND PROPRIETARY TECHNOLOGY
The Company's success will depend, in part, upon its ability to develop
patentable products and technologies and obtain patent protection for its
products and technologies both in the United States and other countries. The
Company has a proprietary portfolio of patent rights and applications, and
exclusive licenses to patents and patent applications relating to tissue
equivalents, cell therapies and other aspects of tissue engineering. These
patent applications include patents relating to tissue sourcing, methods of
preparation, cell structure technologies, sterilization technologies,
manufacturing methods and cryopreservation of living tissue.
In the United States, the Company has twelve issued patents plus two patents
which have reached notice of allowance status. The Company also has seven pan-
European patents issued, while in Asia the Company has eight issued patents
plus one patent which has achieved notice of allowance status. Some of the
Company's technologies are licensed under an exclusive patent license
agreement with the Massachusetts Institute of Technology ("MIT"). The
agreement with MIT (as amended, the "MIT Agreement") covers certain U.S.
patents and corresponding patents in European and Far East countries. Pursuant
to the MIT Agreement, the Company has been granted an exclusive, worldwide
license to make, use and sell the products covered by the patents and to
practice the procedures covered by the patents. The MIT Agreement requires the
Company to pay to MIT a royalty on the cumulative net sales of licensed
products ranging from 3% to 4.5% of annual sales. The Company's other U.S.
issued patents relate to: the Company's test system incorporating skin tissue
equivalents and other organ equivalents; its proprietary collagen extraction
process; the invention and methods of making dense fibrillar collagen
constructs; the production of an organ equivalent for the cornea and its
method of production using tissue culturing systems; a method of making
collagen thread; and a method of cold chemical sterilization which maintains
the cell-compatibility of the Company's collagen. As part of the continuing
interest in protecting its intellectual property rights, the Company has also
filed, and is prosecuting, over ten other patent applications in the United
States alone. The Company also aggressively attempts to achieve comparable
patents in the major international markets for its products, particularly in
Europe and Japan.
There can be no assurance that any patents will be issued as a result of the
Company's applications, or that issued patents will provide the Company with
significant protection against competitors. Moreover, there can be no
assurance that any patents issued to or licensed by the Company will not be
infringed, or that third parties will not independently develop either the
same or similar technology. The Company could incur substantial costs in
proceedings before the United States Patent Office, including interference
proceedings. These proceedings could also result in adverse decisions as to
the patentability of the Company's licensed or assigned inventions. Further,
there can be no assurance that the Company will not infringe upon prior or
future patents owned by others, that the Company will not need to acquire
licenses under patents belonging to others for technology potentially useful
or necessary to the Company, or that such licenses will be available to the
Company, if at all, on terms acceptable to the Company. There can be no
assurance that third parties will not bring suit against the Company for
patent infringement or for declaratory judgment to have the patents owned or
licensed by the Company declared invalid. The Company also relies on trade
secrets and other unpatented proprietary technology. No assurance can be given
that the Company can meaningfully protect its rights in such unpatented
technology or that others will not independently develop substantially
equivalent products and processes or otherwise gain access to the Company's
technology.
5
<PAGE>
The Company seeks to protect its trade secrets and proprietary know-how, in
part, through confidentiality agreements with its employees, consultants,
advisors and collaborators. There can be no assurance that these agreements
will not be violated by the other parties, that the Company will have adequate
remedies for any breach, or that the Company's trade secrets will not
otherwise become known or be independently developed by competitors. The
Company has relationships with a number of academic consultants who are
employed by organizations other than the Company. Accordingly, the Company has
limited control over their activities and can expect only limited amounts of
their time to be dedicated to the Company's activities. These persons may have
consulting, employment or advisory arrangements with other entities that may
conflict with or compete with their obligations to the Company. Consultants
generally sign agreements which provide for confidentiality of the Company's
proprietary information and results of studies. However, there can be no
assurance that the Company will, in connection with every relationship, be
able to maintain the confidentiality of the Company's technology,
dissemination of which could have a materially adverse effect on the Company's
business. To the extent that the Company's scientific consultants develop
inventions or processes independently that may be applicable to the Company's
proposed products, disputes may arise as to the ownership of the proprietary
rights to such information. Such inventions or processes will not necessarily
become the property of the Company, but may remain the property of such
persons or their full-time employers. The Company could be required to make
payments to the owners of such inventions or processes, either in the form of
cash, equity or a combination thereof. In addition, protracted and costly
litigation may be necessary to enforce and determine the scope and validity of
the Company's proprietary rights.
COMPETITION
The Company is engaged in the rapidly evolving and competitive field of
tissue engineering. Many major pharmaceutical, biotechnology and medical
product companies in the United States and abroad are seeking to develop
competitive products for the treatment of skin wounds and organ equivalent
products. Competition from these companies and others is intense and is
expected to increase. Many of these companies have substantially greater
capital resources, research and development staffs, facilities and experience
in the marketing and distribution of products than the Company. In addition,
competitive companies are working on alternate approaches to many of the
diseases targeted by the Company.
The Company is currently aware of other companies which have or are planning
to commercialize products intended to serve as skin replacements, in addition
to several companies that concentrate on skin repair devices. The Company's
principal competitors in the wound care products market include Johnson &
Johnson, Kendall, Smith & Nephew, Advanced Tissue Sciences, Bristol-Myers
Squibb and Genzyme Tissue Repair. The Company believes that its competitive
position will be based on its ability to create and maintain scientifically
advanced technology and proprietary products and processes, attract and retain
qualified scientific personnel, obtain patent or other protection for its
products and processes, obtain required government approvals on a timely
basis, manufacture its products on a cost-effective basis and successfully
market its products. There can be no assurance that the Company's products
under development will be able to compete successfully with existing products
or products under development by other companies, universities and other
institutions or that they will attain regulatory approval in the United States
or elsewhere.
MANUFACTURING LIMITATIONS
The process of manufacturing the Company's products is complex, requiring
strict adherence to manufacturing protocols. The Company is producing its lead
product, Graftskin(TM), on a pilot-scale in adherence to these manufacturing
protocols in quantities sufficient to meet its clinical testing needs, and the
Company believes that it can produce increased quantities as needed. However,
the transition from pilot-scale manufacturing to large-scale production of the
Company's products is difficult, and there can be no assurance that the
Company will be able to make this transition successfully.
6
<PAGE>
As the Company undertakes the manufacture of products on a commercial basis,
the Company will be required to maintain a manufacturing facility in
compliance with Good Manufacturing Practices requirements. Manufacturing
facilities and processes must pass a pre-approval inspection before the FDA
will issue any product licenses necessary to market medical therapeutics, and
are subject to continual review and periodic inspection. There can be no
assurance that the Company will be able to manufacture any products
successfully and in a cost effective manner. If the Company is unable to
manufacture its potential products independently or obtain or retain third-
party manufacturing on commercially acceptable terms, the submission of
products for final regulatory approval and initiation of marketing would be
delayed. This, in turn, may cause the Company to be unable to commercialize
its product candidates as planned, which may have a material adverse effect on
the Company.
SOURCES OF SUPPLY
The Company manufactures Graftskin(TM) for use in its clinical trials at its
Canton, Massachusetts facility and intends to manufacture Graftskin(TM) for
its commercial sale at the facility. Among the fundamental raw materials
needed to manufacture Graftskin(TM), are small numbers of keratinocytes and
fibroblast cells. These cells are derived from donated infant foreskin. In
order for the Company's products made with these initial cells to be used as a
replacement for human skin, it is critical that the cells be pathogen free.
Extensive testing is performed on the blood from the donor's mother to assure
a pathogen free condition. In addition, frozen storage banks of cells derived
from the foreskin tissue undergo further in vitro testing to assure a pathogen
free condition. Although the Company has experienced no difficulty in
obtaining cells, there can be no assurance that additional cells of adequate
purity can be created, or once created, that the cells derived from it will in
fact be pathogen free.
Another major additional material required to produce the Company's products
is collagen, a protein ordinarily obtained from animal source tissue by
commercial suppliers. The Company has developed a proprietary method of
producing its own collagen. This process yields collagen which the Company
believes is superior in quality and strength to collagen available from
commercial sources and which provides the Company with a continuous, high-
quality source of supply. The Company currently obtains its animal source
tissue from U.S. suppliers only, as required by the U.S. Department of
Agriculture ("USDA"); there is currently only one other USDA approved country
from which these materials may be purchased. There can be no assurance that
the Company will be able to obtain adequate supplies of animal source tissue
to meet its future needs or that the Company will be able to obtain such
supplies on a cost effective basis.
The thermo formed tray assembly that is used in the manufacturing process of
Graftskin(TM), is available under a supply arrangement with only one FDA-
approved manufacturing source. Because the FDA approval process requires
manufacturers to specify their proposed materials of certain component parts
in their applications, FDA approval of a new material would be required if a
currently approved material became unavailable from a supplier. There can be
no assurance that the Company will be able to obtain adequate supplies of
thermo formed tray assemblies to meet its future Graftskin(TM) manufacturing
needs or that the Company will be able to obtain such assemblies on a cost
effective basis.
Although the Company has not experienced difficulty acquiring supplies for
the manufacture of its products for clinical trials or non commercial samples,
there can be no assurance that interruptions in supplies will not occur in the
future or that the Company would not have to obtain substitute vendors for
these materials. Any significant supply interruption would adversely affect
the Company's clinical trials, non commercial samples or future large scale
commercial manufacturing of Graftskin(TM). In addition, an uncorrected
impurity or suppliers variation in a raw material, either unknown to the
Company or incompatible with the Company's manufacturing process, could have a
material adverse effect on the Company's ability to manufacture its products.
7
<PAGE>
GOVERNMENT REGULATION
The Company's present and proposed activities are subject to government
regulation in the United States and other countries. In order to clinically
test, produce and market medical devices for human use, the Company must
satisfy mandatory procedures and safety and efficacy requirements established
by the FDA and comparable state and foreign regulatory agencies. Typically,
such rules require that products be approved by the government agency as safe
and effective for their intended use prior to being marketed. The approval
process is expensive, time-consuming and subject to unanticipated delays, and
no assurance can be given that any agency will grant its approval.
Testing is necessary to determine safety and efficacy before a submission
may be filed with the FDA to obtain authorization to market regulated
products. In addition, the FDA imposes various requirements on manufacturers
and sellers of products under its jurisdiction, such as labeling, good
manufacturing practices, record keeping and reporting requirements. The FDA
also may require post-marketing testing and surveillance programs to monitor a
product's effects.
If the Company develops any product to a point where FDA authorization
becomes required, there can be no assurance that the appropriate authorization
will be granted, that the process to obtain such authorization will not be
excessively expensive or lengthy, or that the Company will have sufficient
funds to pursue such approvals. Moreover, the failure to receive requisite
authorization for the Company's products or processes when and if developed or
significant delays in obtaining such authorization would prevent the Company
from commercializing its products as anticipated and may have a materially
adverse effect on the business of the Company.
Additional government regulation may be established that could prevent or
delay regulatory approval of the Company's product candidates. Delays in
obtaining regulatory approvals would adversely affect the marketing of any
products developed by the Company and the Company's ability to receive product
revenues or royalties. If regulatory approval of a potential product is
granted, such approval may include significant limitations on the indicated
uses for which such product may be marketed.
Even if initial regulatory approvals for the Company's product candidates
are obtained, the Company, its products and its manufacturing facilities are
subject to continual review and periodic inspection. The regulatory standards
for manufacturing are applied stringently by the FDA. Discovery of previously
unknown problems with a product, manufacturer or facility may result in
restrictions on such product or manufacturer or facility, including warning
letters, fines, suspensions of regulatory approvals, product recalls,
operating restrictions, delays in obtaining new product approvals, withdrawal
of the product from the market, and criminal prosecution. Other violations of
FDA requirements can result in similar penalties.
PRODUCT LIABILITY AND AVAILABILITY OF INSURANCE
The Company's business exposes it to potential liability risks that are
inherent in the testing, manufacturing and marketing of medical products. The
use of the Company's product candidates in clinical trials may expose the
Company to product liability claims and possible adverse publicity. These
risks also exist with respect to the Company's product candidates, if any,
that receive regulatory approval for commercial sale. The Company currently
has limited product liability coverage for the clinical research use of its
product candidates. The Company does not have product liability insurance for
the commercial sale of its product candidates but intends to obtain such
coverage if and when its products are commercialized. However, there can be no
assurance that the Company will be able to obtain additional insurance
coverage at acceptable costs, if at all, or that a product liability claim
would not materially adversely affect the business or financial condition of
the Company.
HAZARDOUS MATERIALS
Medical and biopharmaceutical research and development involves the
controlled use of hazardous materials, such as various radioactive compounds.
The Company is subject to federal, state and local laws and
8
<PAGE>
regulations governing the use, manufacture, storage, handling and disposal of
such materials and certain waste products. Although the Company believes that
its safety procedures for handling and disposing of such materials comply with
the standards prescribed by state and federal regulations, the risk of
accidental contamination or injury from those materials cannot be completely
eliminated. In the event of such an accident, the Company could be held liable
for any damages that result and any such liability could exceed the resources
of the Company. Although the Company believes that it is in compliance in all
material respects with applicable environmental laws and regulations and
currently does not expect to make material capital expenditures for
environment control facilities in the near-term, there can be no assurance
that the Company will not be required to incur significant costs to comply
with environmental laws and regulations, or any assurance that the operations,
business or assets of the Company will not be materially adversely affected by
current or future environmental laws or regulations.
UNCERTAINTY OF THIRD-PARTY REIMBURSEMENT
In both domestic and foreign markets, the ability of the Company to
commercialize its product candidates will depend, in part, on the availability
of reimbursement from third-party payors, such as government health
administration authorities, private health insurers and other organizations.
Third-party payors are increasingly challenging the price and cost-
effectiveness of medical products. There can be no assurance that Company-
developed products will be considered cost effective. Significant uncertainty
exists as to the reimbursement status of newly-approved healthcare products.
There can be no assurance that adequate third-party insurance coverage will be
available for the Company to establish and maintain price levels sufficient
for realization of an appropriate return on its investment in developing new
therapies. Government and other third-party payors are increasingly attempting
to contain healthcare costs by limiting both coverage and the level of
reimbursement for new therapeutic products approved for marketing by the FDA
and by refusing, in some cases, to provide any coverage for uses of approved
products for disease indications for which the FDA has not granted marketing
approval. If adequate coverage and reimbursement levels are not provided by
government and third-party payors for uses of the Company's therapeutic
products, the market acceptance of these products would be adversely affected.
UNCERTAINTY RELATED TO HEALTH CARE REFORM MEASURES
There have been a number of federal and state proposals during the last few
years to subject the pricing of pharmaceuticals to government control and to
make other changes to the health care system of the United States. It is
uncertain what legislative proposals will be adopted or what actions federal,
state or private payors for health care goods and services may take in
response to any health care reform proposals or legislation. The Company
cannot predict the effect health care reforms may have on its business, and no
assurance can be given that any such reforms will not have a material adverse
effect on the Company.
DEPENDENCE ON STRATEGIC RELATIONSHIPS
The Company has limited experience in sales, marketing and distribution. The
Company will need to develop long-term strategic relationships with companies
such as Sandoz that have marketing and sales forces with technical expertise
and distribution capability. To the extent that the Company enters into such
relationships, any revenues received by the Company will depend upon the
efforts of third parties and there can be no assurance that such efforts will
be successful. There can be no assurance that the Company will be able to
establish such long-term relationships or that it or its collaborators will be
successful in gaining market acceptance for any products that may be developed
by the Company.
ABSENCE OF DIVIDENDS
The Company has never declared or paid any cash dividends on its capital
stock. The Company currently intends to retain earnings, if any, to support
the development of its business and does not anticipate paying cash dividends
in the foreseeable future.
9
<PAGE>
STOCK PRICE VOLATILITY
The market prices of securities of biotechnology companies have been
volatile. Factors such as announcements of technological innovations, new
commercial products by the Company or its competitors, governmental
regulations, patent or proprietary rights developments, public concern as to
safety or other implications of biotechnology products and market conditions
in general may have a significant impact on the market price of the Common
Stock. Between the date of the Company's initial public offering in December
1986 and March 31, 1996, the Company's stock has traded at per share prices
(after adjustment to account for the 25% Common Stock dividend distributed by
the Company on September 8, 1995) between $3.80 and $21.625. From December 31,
1992 until March 31, 1996, the per share price range has been between $4.40
and $21.625. There can be no assurance that this high level of volatility will
not persist in the future, and that investors in this offering will not be
adversely affected.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Common Stock by
the Selling Stockholders.
DESCRIPTION OF CAPITAL STOCK
AUTHORIZED AND OUTSTANDING CAPITAL STOCK. The Company's Stockholders at the
Company's Annual Meeting of Stockholders held on May 15, 1996, authorized the
Company to issue up to 40,000,000 shares of Common Stock, $.01 par value per
share ("Common Stock"). The Company intends to file an amendment to its
Restated Certificate of Incorporation as soon as practicable, whereupon the
Company will be authorized to issue up to 40,000,000 shares. The Company is
authorized to issue up to 1,000,000 shares of Preferred Stock, $1.00 par value
per share ("Preferred Stock"). Unless otherwise specified, all share prices
and numbers have been adjusted to account for a 25% Common Stock dividend
distributed by the Company on September 8, 1995.
As of March 31, 1996, there were issued and outstanding 13,970,663 shares of
Common Stock. 250,000 shares of Series A Stock have been issued; all such
shares have been converted to Common Stock and no shares of Series A
Convertible Preferred Stock (the "Series A Stock") are currently outstanding.
In addition, as of March 31, 1996, the Company had reserved an aggregate of
2,500,000 (1,630,128 of which are available for future issuances) shares of
Common Stock for issuance under its 1986 Stock Option Plan, 187,500 (177,551
of which are available for future issuances) shares of Common Stock for
issuance under its 1991 Employee Stock Purchase Plan, 125,000 shares of Common
Stock for issuance under the 1991 Directors' Stock Option Plan, 250,000
(246,250 of which are available for future issuances) shares of Common Stock
for issuance under its 1994 Directors' Stock Option Plan, 1,500,000 shares of
Common Stock for issuance under its 1995 Stock Option Plan, 375,000 shares of
Common Stock for issuance pursuant to a stock option agreement with an officer
of the Company, and 521,875 shares of Common Stock for issuance upon the
exercise of certain warrants described below.
COMMON STOCK. The holders of Common Stock are entitled to one vote per share
for each share held of record on all matters submitted to a vote of
stockholders and are entitled to receive ratably such dividends as may be
declared by the Board of Directors out of funds legally available therefor. In
the event of a liquidation, dissolution or winding up of the Company, holders
of Common Stock have the right to a ratable portion of assets remaining after
payment of liabilities and the liquidation preferences of any outstanding
Preferred Stock. The holders of Common Stock have no preemptive rights or
rights to convert their Common Stock into any other securities and are not
subject to future calls or assessments by the Company. All outstanding shares
of Common Stock are fully paid and non-assessable.
PREFERRED STOCK. The Board of Directors may, without further action of the
stockholders of the Company, issue Preferred Stock in one or more series and
fix the rights and preferences thereof, including dividend rights, dividend
rates, conversion rights, voting rights, terms of redemption (including
sinking fund provisions),
10
<PAGE>
redemption price or prices, liquidation preferences and the number of shares
constituting any series or the designation of such series.
The rights of the holders of Common Stock as described above will be subject
to, and may be adversely affected by, the rights of holders of any Preferred
Stock that may be issued in the future. Issuance of Preferred Stock, while
providing desirable flexibility in connection with possible acquisitions, and
other corporate purposes, could have the effect of making it more difficult
for a third party to acquire, or of discouraging a third party from acquiring,
a majority of the outstanding voting stock of the Company. See "Description of
Capital Stock--Shareholder Rights." The Company has no present plans to issue
any additional shares of Preferred Stock.
Series A Stock. On May 12, 1991, the Board of Directors authorized the
designation of 250,000 shares of Series A Stock. All such shares have been
converted to Common Stock and no shares of the Series A Stock are currently
outstanding.
Series B Stock. On August 24, 1995, the Board authorized the designation of
50,000 shares of Series B Junior Participating Preferred Stock (the "Series B
Stock"). No shares of Series B Stock have been issued by the Company and the
Company has no present intent to issue any such shares. Shares of Series B
Stock rank, with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of Preferred Stock, including,
but not limited to, the Series A Stock, unless the terms of any such series
shall provide otherwise. Subject to the foregoing, each share of Series B
Stock, when and if issued, would be entitled to a minimum quarterly dividend
payment of $10.00 per share and would be entitled to an aggregate dividend of
1,000 times any dividend declared per share of Common Stock. In the event of a
liquidation, the holders of the Series B Stock would be entitled to, subject
to the rights of the holders of Series A Stock and holders of any other
Preferred Stock which is senior to the Series B Stock, a minimum preferential
liquidating payment of $10.00 per share and would be entitled to an aggregate
payment of 1,000 times the payment made per share on Common Stock. If and when
issued, each share of Series B Stock would be entitled to 1,000 votes, when
voting together with the Common Stock.
COMMON STOCK PURCHASE WARRANTS. There are currently outstanding Common Stock
Purchase Warrants (the "Warrants") issued by the Company to certain investors
to purchase an aggregate of 521,875 shares of its Common Stock, for exercise
prices ranging from $9.60 per share to $15.90 per share. Warrants to purchase
287,500 shares of Common Stock were issued by the Company in July 1995 (the
"1995 Warrants"). Each of the 1995 Warrants entitles the holders thereof to
purchase shares of Common Stock at an exercise price of $15.90 per share
during the period from October 14, 1996 through October 14, 2001. The
remainder of the Warrants to purchase an aggregate of 234,375 shares of Common
Stock were exercised by the Selling Stockholders on February 14, 1996 in the
amount of 187,500 shares at an exercise price of $9.75 per share, and on
January 15, 1996 in the amounts of 15,625 shares at an exercise price of
$12.00 per share and of 31,250 shares at an exercise price of $9.60 per share
(the "Exercised Warrants").
The shares of Common Stock issuable upon exercise of the 1995 Warrants have
been registered under the Securities Act. The shares of Common Stock issuable
upon exercise of the Exercised Warrants (the "Registrable Shares") are being
registered herein under the Securities Act.
SHAREHOLDER RIGHTS. On August 24, 1995, the Board declared a dividend
distribution of one right (the "Rights") for each outstanding share of Common
Stock. Each Right entitles the registered holder to purchase from the Company
one-one thousandth of a share of Series B Stock at a purchase price of $85.00
in cash, subject to adjustment. Initially, the Rights will be attached to all
Common Stock certificates representing shares then outstanding and no separate
Rights Certificates will be distributed. The Rights will separate from the
Common Stock and a "Distribution Date" will occur upon the earlier of (i) ten
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired or obtained the right
to obtain beneficial ownership of 15% or more of the outstanding shares of
Common Stock (the "Stock Acquisition Date"), or (ii) ten business days
following the commencement of a tender offer or exchange offer that would
result in a person or group beneficially owning 30% or more of the Company's
outstanding shares of
11
<PAGE>
Common Stock. The rights are not exercisable until the Distribution Date and
will expire at the close of business on September 1, 2005, unless earlier
redeemed or exchanged by the Company. At any time until ten days following the
Stock Acquisition Date, the Company may redeem the Rights, in whole but not in
part, at a price of $.01 per Right (payable in cash or stock).
If any person becomes the beneficial owner of 15% or more of the shares of
Common Stock of the Company, except pursuant to a tender or exchange offer for
all shares at a fair price as determined by the non-employee members of the
Board of Directors, each Right not owned by the 15% or more shareholder will
enable its holder to purchase that number of shares of the Company's Common
Stock which equals the exercise price of the Right divided by one-half of the
current market price of such Common Stock at the date of the occurrence of the
event. In addition, if the Company is involved in a merger or other business
combination transaction with another person or group in which it is not the
surviving corporation or in connection with which its Common Stock is changed
or converted, or it sells or transfers 50% or more of its assets or earning
power to another person, each Right that has not previously been exercised
would entitle its holder to purchase that number of shares of Common Stock of
such other person which equals the exercise price of the Right divided by one-
half of the current market price of such Common Stock at the date of the
occurrence of the event.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the Company's Common Stock is American
Stock Transfer & Trust Company.
THE SELLING STOCKHOLDERS
The following table sets forth the name and the number of shares of Common
Stock beneficially owned by the Selling Stockholders as of March 31, 1996, the
number of the shares to be offered by the Selling Stockholders pursuant to
this Prospectus and the number of shares to be beneficially owned by the
Selling Stockholders if all of the shares offered hereby by the Selling
Stockholders are sold as described herein.
<TABLE>
<CAPTION>
SHARES OF
SHARES OF COMMON STOCK
COMMON STOCK BENEFICIALLY OWNED
BENEFICIALLY OWNED AFTER OFFERING
----------------------- SHARES OF --------------------
NAME OF SELLING PERCENTAGE OF COMMON STOCK PERCENTAGE OF
STOCKHOLDER NUMBER(1) COMMON STOCK OFFERED HEREBY NUMBER COMMON STOCK
- --------------- --------- ------------- -------------- ------ -------------
<S> <C> <C> <C> <C> <C>
Fondation Danonia....... 46,875 *% 46,875 (2) (2)
Gerard Klauer Mattison &
Co..................... 187,500 *% 187,500 (2) (2)
</TABLE>
- --------
* less than 1%
(1) Represents shares of Common Stock which may be acquired within 60 days
after May 1, 1996.
(2) The Company cannot determine the number of shares of Common Stock which
will be held by the Selling Stockholders upon the completion of the
offering, as the length of time of the offering period and the
determination of whether to buy or sell additional securities of the
Company during the offering period are at the discretion of the Selling
Stockholders.
12
<PAGE>
PLAN OF DISTRIBUTION
Shares of Common Stock covered hereby may be offered and sold from time to
time by the Selling Stockholders. The Selling Stockholders will act
independently of the Company in making decisions with respect to the timing,
manner and size of each sale. Such sales may be made on the American Stock
Exchange or otherwise, at prices related to the then current market price or
in negotiated transactions, including pursuant to an underwritten offering or
one or more of the following methods: (a) purchases by a broker-dealer as
principal and resale by such broker or dealer for its account pursuant to this
Prospectus; (b) ordinary brokerage transactions and transactions in which a
broker solicits purchasers; and (c) block trades in which a broker-dealer so
engaged will attempt to sell the shares as agent but may position and resell a
portion of the block as principal to facilitate the transaction. The Company
has been advised by the Selling Stockholders that they have not made any
arrangements relating to the distribution of the shares covered by this
Prospectus. In effecting sales, broker-dealers engaged by the Selling
Stockholders may arrange for other broker-dealers to participate. Broker-
dealers will receive commissions or discounts from the Selling Stockholders in
amounts to be negotiated immediately prior to the sale. Pursuant to each of
the Common Stock Purchase Warrants and the Warrant for the Purchase of Shares
of Common Stock, dated as of April 3, 1991 and November 21, 1991,
respectively, between the Company and the respective Selling Stockholders, the
Company has agreed to indemnify the respective Selling Stockholders against
certain liabilities under the Securities Act.
In offering the shares of Common Stock covered hereby, the Selling
Stockholders and any broker-dealers and any other participating broker-dealers
who execute sales for the Selling Stockholders may be deemed to be
"underwriters" within the meaning of the Securities Act in connection with
such sales, and any profits realized by the Selling Stockholders and the
compensation of such broker-dealer may be deemed to be underwriting discounts
and commissions. In addition, any shares covered by this Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus. None of the shares covered by this Prospectus
presently qualify for sale pursuant to Rule 144.
The Company has advised the Selling Stockholders that during such times as
they may be engaged in a distribution of Common Stock included herein they are
required to comply with Rules 10b-6 and 10b-7 under the Exchange Act (as those
Rules are described in more detail below) and, in connection therewith, that
they may not engage in any stabilization activity in connection with the
Company's securities, they are required to furnish to each broker-dealer,
through which Common Stock included herein may be offered, copies of this
Prospectus and that they may not bid for or purchase any securities of the
Company or attempt to induce any person to purchase any of the Company's
securities except as permitted under the Exchange Act. The Selling
Stockholders have agreed to inform the Company when the distribution of the
shares is completed.
Rule 10b-6 under the Exchange Act prohibits, with certain exceptions,
participants in a distribution from bidding for or purchasing, for an account
in which the participant has a beneficial interest, any of the securities that
are the subject of the distribution. Rule 10b-7 governs bids and purchases
made in order to stabilize the price of a security in connection with a
distribution of the security.
This offering will terminate on the earlier of (a) six months from the
effective date hereof or (b) the date upon which all shares offered hereby
have been sold by the Selling Stockholders.
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<PAGE>
LEGAL MATTERS
The validity of the shares offered hereby will be passed upon for the
Company by Hale and Dorr, Boston, Massachusetts.
EXPERTS
The consolidated balance sheets of the Company as of December 31, 1995 and
1994 and the related consolidated statements of operations, stockholders'
deficit and cash flows for each of the three years in the period ended
December 31, 1995 are incorporated by reference in this Prospectus and
elsewhere in the registration statement and have been incorporated herein in
reliance upon the reports of Coopers & Lybrand L.L.P., independent
accountants, given on the authority of such firm as experts in accounting and
auditing.
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<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALES REPRESENTATIVE OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO
GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATION IN CONNECTION WITH THIS
OFFERING OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE,
SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITIES OTHER THAN THE
REGISTERED SECURITIES TO WHICH IT RELATES OR AN OFFER TO, OR SOLICITATION OF,
ANY PERSON IN ANY JURISDICTION WHERE SUCH AN OFFER OR SOLICITATION WOULD BE
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER
SHALL, UNDER ANY CIRCUMSTANCE, CREATE ANY IMPLICATION THAT THERE HAS BEEN NO
CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THAT THE
INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY DATE SUBSEQUENT TO THE DATE
HEREOF.
----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Incorporation of Certain Documents by Reference............................ 2
Available Information...................................................... 2
The Company................................................................ 3
Risk Factors............................................................... 4
Use of Proceeds............................................................ 10
Description of Capital Stock............................................... 10
The Selling Stockholder.................................................... 12
Plan of Distribution....................................................... 13
Legal Matters.............................................................. 14
Experts.................................................................... 14
</TABLE>
- --------------------------------------------------------------------------------
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- --------------------------------------------------------------------------------
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ORGANOGENESIS INC.
[LOGO]
----------------
PROSPECTUS
----------------
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The costs of issuance and distribution will be borne by the Registrant as
follows:
<TABLE>
<S> <C>
SEC Registration Fee............................................. $ 1,636.58
AMEX Listing Fee................................................. 4,687.50
Accounting Fees and Expenses*.................................... 5,000.00
Legal Fees and Expenses*......................................... 10,000.00
Printing and Engraving*.......................................... 3,000.00
Miscellaneous*................................................... 5,675.92
----------
Total.......................................................... $30,000.00
==========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware provides
that a corporation has the power to indemnify a director, officer, employee or
agent of the corporation and certain other persons serving at the request of
the corporation in related capacities against amounts paid and expenses
incurred in connection with an action or proceeding to which he is or is
threatened to be made a party by reason of such position, if such person shall
have 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, in any criminal
proceeding, if such person had no reasonable cause to believe his conduct was
unlawful, provided that, in the case of actions brought by or in the right of
the corporation, no indemnification shall be made with respect to any matter
as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the adjudicating court
determines that such indemnification is proper under the circumstances.
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 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 provides for
indemnification to the fullest extent permitted by law and 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 also provides, as
permitted by Delaware law, that directors shall not be personally liable to
the Company or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of a director's
duty of loyalty to the Company or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or knowing
violations 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 has a Directors and Officers liability insurance policy that
insures the Company's officers and directors against certain liabilities.
II-1
<PAGE>
ITEM 16. EXHIBITS.
See Exhibit Index included immediately preceding the Exhibits to this
Registration Statement, which is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
(a) 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 provisions described under "Item 15--
Indemnification of Directors and Officers" above, 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.
(b) The undersigned Registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus 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) The undersigned 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 herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-2
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Herbert
M. Stein, David T. Rovee and Donna L. Abelli and each of them, his or her true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution in each of them, for him or her and in his or her name, place
and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments to this Registration Statement on Form S-
3 of Organogenesis Inc. (or any other Registration Statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) under the
Securities Act) and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them or
their or his or her substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities
indicated.
Organogenesis Inc.
By: /s/ Herbert M. Stein
By: _________________________________
HERBERT M. STEIN CHIEF EXECUTIVE
OFFICER
SIGNATURE TITLE DATE
/s/ Herbert M. Stein Chief Executive May 16, 1996
- ------------------------------------- Officer, Chairman
HERBERT M. STEIN and Director
(Principal
Executive Officer)
/s/ David T. Rovee President, Chief May 16, 1996
- ------------------------------------- Operating Officer
DAVID T. ROVEE and Director
/s/ Donna L. Abelli Vice President, May 16, 1996
- ------------------------------------- Chief Financial
DONNA L. ABELLI Officer, Treasurer
and Secretary
(Principal
Financial Officer
and Principal
Accounting Officer)
/s/ Richard S. Cresse Director May 16, 1996
- -------------------------------------
RICHARD S. CRESSE
II-3
<PAGE>
SIGNATURE TITLE DATE
/s/ William J. Hopke Director May 16, 1996
- -------------------------------------
WILLIAM J. HOPKE
/s/ Bjorn R. Olsen Director May 16, 1996
- -------------------------------------
BJORN R. OLSEN
/s/ Marguerite A. Piret Director May 16, 1996
- -------------------------------------
MARGUERITE A. PERIT
/s/ Anton E. Schrafl Director May 16, 1996
- -------------------------------------
ANTON E. SCHRAFL
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT DESCRIPTION OF EXHIBIT
------- ----------------------
<C> <S>
*4.1 Restated Certificate of Incorporation, as amended, of Organogenesis
Inc.
**4.2 Certificate of Stock Designation, Number, Voting Powers, Preferences
and Rights of the Series of the Preferred Stock of Organogenesis Inc.,
Designated Series A Convertible Preferred Stock
***4.3 Certificate of Stock Designation, Number, Voting Powers, Preferences
and Rights of the Series of Preferred Stock of Organogenesis Inc.,
Designated Series B Junior Participating Preferred Stock.
****4.4 By-Laws, as amended, of Organogenesis Inc.
4.5.1 Common Stock Purchase Warrant, dated as of December 20, 1995, between
Organogenesis Inc. and Fondation Danonia
4.5.2 Common Stock Purchase Warrant, dated as of December 20, 1995, between
Organogenesis Inc. and Fondation Danonia
4.5.3 Warrant for the Purchase of Shares of Common Stock, dated as of
November 21, 1991, between Organogenesis Inc. and Gerard Klauer
Mattison & Co., Inc.
5 Opinion of Hale and Dorr
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Hale and Dorr (included in Exhibit 5)
24.1 Powers of Attorney (See Page II-3)
</TABLE>
- --------
* Incorporated by reference to the Company's Registration Statement on Form
S-3 (File No. 33-40287), filed with the Commission on April 30, 1991.
** Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1991 (File No. 0-15246), filed with the
Commission on August 13, 1991.
*** Incorporated by reference to the Company's Current Report on Form 8-K
(File No. 0-15246) filed with the Commission on August 31, 1995.
**** Incorporated by reference to the Company's Annual Report on Form 10-K
(File No. 0-15246) filed with the Commission on March 31, 1987.
<PAGE>
EXHIBIT 4.5.1
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY IN FORM AND SCOPE TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
THIS WARRANT IS SUBJECT TO RESTRICTIONS
ON TRANSFER AS PROVIDED HEREIN.
Warrant No.: 1991A-2 Number of Shares: 31,250
As of December 20, 1995 (Subject to Adjustment)
ORGANOGENESIS INC.
COMMON STOCK PURCHASE WARRANT
1. Number and Price of Shares Subject to Warrant. Subject to the terms
---------------------------------------------
and conditions set forth below, Foundation Danonia or its designee (the
"Holder") is entitled to purchase from Organogenesis Inc., a Delaware
corporation (the "Company"), at any time after the date hereof but prior to
April 3, 1996, 31,250 shares (which number of shares is subject to adjustment as
described below) of fully paid and nonassessable Common Stock of the Company,
$.Ol par value per share (the "Shares") upon surrender of this Warrant at the
principal office of the Company and upon payment of the purchase price at said
office in cash, by certified check or by wire transfer of immediately available
funds. Subject to adjustment as hereinafter provided, the purchase price of one
share of Common Stock (or such securities as may be substituted for one share of
Common Stock pursuant to the provisions hereinafter set forth) shall be $9.60.
The purchase price of one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions hereinafter
set forth) payable from time to time upon the exercise of this Warrant (whether
such price be the price specified above or an adjusted price determined as
hereinafter provided) is referred to herein as the "Warrant Price".
<PAGE>
2. Adjustment of Warrant Price and Number of Shares. The number and kind
------------------------------------------------
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) Adjustment for Dividends in Stock or Other Securities Property.
--------------------------------------------------------------
If, after the date hereof, the holders of the Common Stock of the Company (or
any shares of stock or other securities at the time issuable upon the exercise
of this Warrant) shall have received, or, on or after the record date fixed for
the determination of eligible stockholders, shall have become entitled to
receive, without payment therefor, other or additional stock or other securities
or property (other than cash) of the Company by way of dividend, then and in
each case, the holder of this Warrant shall, upon the exercise hereof, be
entitled to receive, in addition to the number of shares of Common Stock
receivable upon exercise of this Warrant, and without payment of any additional
consideration, the amount of such other or additional stock or other securities
or property (other than cash) of the Company which such holder would have
received had it been the holder of record of such Common Stock on the date of
such dividend and had, during the period from the date hereof to and including
the date of such exercise, retained such shares and/or all other additional
stock available to it during such period, giving effect to all adjustments
called for during such period by paragraphs (b), (c), and (d) of this Section 2.
(b) Adjustment for Reclassification, Reorganization or Merger. In
---------------------------------------------------------
case of any reclassification or change of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the exercise of
this Warrant) or any similar corporate reorganization on or after the date
hereof, or in case, after such date, the Company (or any such other corporation)
shall merge with or into another corporation or convey all or substantially all
of its assets to another person, then and in each such case the holder of this
Warrant, upon the exercise hereof at any time after the consummation of such
reclassification, change, reorganization, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in
-2-
<PAGE>
paragraphs (a), (c) and (d) of this Section 2; in each such case, the terms of
this Section 2 shall be applicable to the shares of stock or other securities
properly receivable upon the exercise of this Warrant after such consummation.
(c) Stock Splits and Reverse Stock Splits. If at any time on or
-------------------------------------
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of this warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
(d) No Change Necessary. The form of this Warrant need not be
-------------------
changed because of any adjustment in the Warrant Price or in the number of
shares of Common Stock issuable upon its conversion. A Warrant issued after any
adjustment on any partial conversion or upon replacement may continue to express
the same Warrant Price and the same number of shares of Common Stock
(appropriately reduced in the case of partial conversion) as are stated on this
Warrant as initially issued, and that Warrant Price and that number of shares
shall be considered to have been so changed as of the close of business on the
date of adjustment.
(e) No Impairment. The Company will not, by any voluntary action,
-------------
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 2 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holders of this Warrant against impairment.
(f) Notices of Record Date. In the event that the Company shall
----------------------
propose at any time to merge with or into any other corporation, or sell, lease
or convey all or substantially all its property or business, or to liquidate,
dissolve or wind up, then the Company shall send to the holder of this Warrant
at least 20 days prior written notice of the date on which a record shall be
taken for determining rights to vote in respect of such event.
-3-
<PAGE>
3. No Stockholder Rights. This Warrant shall not entitle its holder to
---------------------
any of the rights of a stockholder of the Company.
4. Reservation of Stock. The Company covenants that during the period
--------------------
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Restated Certificate of Incorporation to
provide sufficient reserves of shares of Common Stock issuable upon exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of Common Stock upon the exercise of this Warrant.
5. Exercise of Warrant. This Warrant may be exercised by the holder
-------------------
hereof by the surrender of this Warrant at the principal office of the Company,
accompanied by payment in full of the Warrant Price then in effect as described
above. This Warrant may be exercised in whole or in part. However, the Company
shall not be required upon exercise of this Warrant to issue any fractional
shares. This Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date of its surrender for exercise as provided
above, and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the holder of such
shares of record as of the close of business on such date. As promptly as
practicable on or after such date, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the same a certificate or
certificates for the number of full shares of Common Stock issuable upon such
exercise. The shares of Common Stock issuable upon exercise hereof shall, upon
their issuance, be fully paid and nonassessable. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares of Common Stock
remaining for exercise from this Warrant.
6. Certificate of Adjustment. Whenever the Warrant Price or number or
-------------------------
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
-4-
<PAGE>
7. Restriction on Transfer. This Warrant may he transferred only with
-----------------------
the prior written consent of the Company; the granting or withholding of such
consent to be in the Company's sole and absolute discretion.
8. Replacement of Warrants. On receipt of evidence reasonably
-----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Investment Representations. The Holder hereby represents and warrants
--------------------------
to the Company that:
(a) This Warrant and the shares of Common Stock issued upon exercise
of this Warrant will be acquired for its own account or for the account of not
more than five (5) qualified foreign investors, and not with a view to or in
connection with the sale or distribution of any part thereof.
(b) The Holder understands that neither this Warrant nor the shares
of Common Stock issuable upon exercise of this Warrant will be registered under
the Securities Act of 1933, as amended (the "Securities Act") for purposes of
the sales contemplated herein, on the ground that the sale of this Warrant is
exempt from the registration and prospectus delivery requirements of the
Securities Act, and that the reliance of the Company on such exemption is
predicated in part on Holder's representations set forth herein.
(c) The Holder acknowledges that it is able to weigh for itself the
risk of purchasing this Warrant, and the Shares upon exercise of this Warrant,
and has the ability to bear the economic risks of such investments.
(d) The Holder understands that this Warrant and the shares of Common
Stock issuable upon exercise of this Warrant are restricted securities within
the meaning of Rule 144 under the Securities Act; that such securities are not
registered and must be held indefinitely unless they are subsequently
registered or an exemption from such registration is available; that, in any
event, the exemption from registration under Rule 144 will not be available for
at least two years, and even then may not be
-5-
<PAGE>
available unless (i) a public trading market then exists for the Common Stock,
(ii) adequate information concerning the Company is then available to the
public, and (iii) other terms and conditions of Rule 144 are complied with; and
that any sale of such securities may be made by such Purchaser only in
accordance with such terms and conditions.
10. Restrictive Legends. Each certificate representing (i) the Shares and
-------------------
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger or similar event shall be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required by applicable state securities law in the
opinion of the Company's counsel):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT
RELATED THERETO OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
IN FORM AND SCOPE TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED UNDER THE SECURITIES ACT OF 1933."
11. Registration Rights
-------------------
(a) Certain Definitions. As used in this Section 11, the following terms
-------------------
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
----------
Federal agency at the time administering the Securities Act.
"Registration Statement" means a registration statement filed by the
----------------------
Company with the Commission for a public offering and sale of securities of the
Company under the Securities Act.
"Registrable Shares" means (i) the shares of Common Stock issued or
------------------
issuable upon exercise of the Warrants (as defined below) and (ii) any other
shares of Common Stock of the Company issued in respect of such shares (because
of stock splits, stock dividends, reclassifications, recapitalizations, or
similar events); provided, however, that shares of Common Stock which are
-------- -------
Registrable Shares shall cease to be Registrable Shares upon any sale pursuant
to a Registration Statement, Section 4(1) of the Securities Act or Rule 144
under the Securities Act. Wherever
-6-
<PAGE>
reference is made in this Warrant to a request or consent of holders of a
certain percentage of Registrable Shares, the determination of such percentage
shall include shares of Common Stock issuable upon exercise of this Warrant even
if such exercise has not yet been effected.
"Warrant Holders" means all holders of Warrants numbered 1991A-2 and
---------------
1991B-2 issued by the Company to the Holder on the date hereof. "Warrant
Holder" is synonymous with Holder.
"Warrants" means the common stock purchase warrants numbered 1991A-2
--------
and 1991B-2 issued by the Company to the Holder on the date hereof.
(b) Required Registrations. Warrant Holders holding in the aggregate at
----------------------
least 50% of the Registrable Shares may at any time request, in writing, that
the Company effect the registration on Form S-3 of Registrable Shares owned by
such Warrant Holders at the Company's expense, If the holders initiating the
registration intend to distribute the Registrable Shares by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other Warrant Holders to
participate shall be conditioned on such Warrant Holders, participation in such
underwriting. upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Warrant Holders. Such
Warrant Holders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Warrant Holders
may request in such notice of election, subject to the approval of the
underwriter managing the offering. Thereupon, the Company shall, as
expeditiously as practicable, use its best efforts to effect the registration,
on Form S-3, of all Registrable Shares which the Company has been requested to
so register.
The Company shall not be required to effect more than one registration
pursuant to this paragraph (b); provided that a registration effected under
paragraph (b) above shall not be counted for the purpose of this limitation if
the Company elects to sell stock pursuant to a registration at the same time as
a registration is requested by Warrant Holders pursuant to paragraph (b).
-7-
<PAGE>
(c) Incidental Registration. Whenever the Company proposes to file a
-----------------------
Registration Statement (other than pursuant to paragraph (b)) at any time
and from time to time, it will, prior to such filing, give written notice
to all Warrant Holders of its intention to do so and, upon the written
request of a Warrant Holder or Warrant Holders given within 20 days after
the Company provides such notice (which request shall state the intended
method of disposition of such Registrable Shares), the Company shall use
its best efforts to cause all Registrable Shares which the Company has been
requested by such Warrant Holder or Warrant Holders to register to be
registered under-the Securities Act to the extent necessary to permit their
sale or other disposition in accordance with the intended methods of
distribution specified in the request of such Warrant Holder or Warrant
Holders; provided that the Company shall have the right to postpone or
withdraw any registration effected pursuant to this paragraph (c) without
obligation to any Warrant Holder.
In connection with any offering under this paragraph (c) involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the holders have requested to be included would
materially and adversely affect such public offering, then the Company shall be
required to include in the underwriting only that number of Registrable Shares,
if any, which the managing underwriter believes may be sold without causing such
adverse effect. If the number of Registrable Shares to be included in the
underwriting in accordance with the foregoing is less than the total number of
shares which the holders of Registrable Shares have requested to be included,
then the holders of Registrable Shares who have requested registration and other
holders of shares of Common Stock entitled to include shares of Common Stock in
such registration shall participate in the underwriting pro rata based upon
their total ownership of shares of Common Stock of the Company. If any holder
would thus be entitled to include more shares than such holder requested to be
registered, the excess shall be allocated among other requesting holders pro
rata based upon their total ownership of Registrable Shares.
-8-
<PAGE>
(d) Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of this Section 11 to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company will, as expeditiously as possible:
(i) prepare and file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to cause such
Registration Statement to become and remain effective for a period of at least
six months from the effective date of such Registration Statement.
Notwithstanding anything contained herein, the Company does not and cannot
guarantee that the Warrant Holder or Warrant Holders will be able to resell the
Registrable Shares at any price even if the Registration Statement becomes and
remains effective for such period of time;
(ii) prepare and file with the Commission any amendments and
supplements to the Registration Statement and the prospectus included in the
Registration Statement as may be necessary to keep the Registration Statement
effective for a period of at least six months from the effective date; and
(iii) use its best efforts to list such Registrable Shares on any
securities exchange on which the Common Stock of the Company is then listed, if
the listing of such securities is then permitted under the rules of such
exchange.
It shall be a condition precedent to the obligation of the Company to take
any action pursuant to this Section 11 that each prospective selling Warrant
Holder of the Registrable Shares shall furnish to the Company an instrument duly
executed by such Warrant Holder and such underwriter specifically for use in the
preparation of the Registration Statement containing such information regarding
the Warrant Holder and the Registrable Shares held by such Warrant Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company.
(e) Indemnification.
---------------
(i) The Company agrees to indemnify and hold harmless the Warrant
Holder from and against any and all losses, claims, damages, liabilities or
expenses (including reasonable costs of investigation and reasonable attorney's
fees) arising out of or based upon any untrue statement or alleged untrue
statement of a
-9-
<PAGE>
material fact contained in the Registration Statement or in any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that the indemnification contained in this
subsection (e) shall not apply in any respect to any information relating to the
Warrant Holder furnished to the Company by the Warrant Holder expressly for
inclusion in the Registration Statement, or any amendment or supplement thereto,
including, but not limited to, information so supplied by the Warrant Holder in
response to Items 7 and 8 of Form S-3.
(ii) If any action or claim shall be brought against the Warrant
Holder in respect of which indemnity may be sought against the Company in
accordance with subsection (e)(i), the Warrant Holder shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel and payment of all fees and expenses. The Warrant
Holder shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the reasonable fees and expenses of such
counsel shall be at the expense of the Warrant Holder unless (XX) the Company
has agreed in writing to pay such fees and expenses, (YY) the Company has failed
to assume the defense and employ counsel, or (ZZ) the named parties to any such
action (including any impleaded party) include both the Warrant Holder and the
Company and the Warrant Holder shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Company (in which case, if the Warrant
Holder notifies the Company in writing that it elects to employ separate counsel
at the expense of the Company, the Company shall not have the right to assume
the defense of such action on behalf of the Warrant Holder, it being understood,
however that the Company shall not, in connection with any such action or
separate but substantially related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for all the
persons named as Selling Stockholders in the Registration Statement, which firm
shall be designated in writing by the Warrant Holder. The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company, but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless the Warrant Holder from and against any loss,
liability, damage or expense by reason of such settlement or judgment.
-10-
<PAGE>
(iii) The Warrant Holder agrees, to indemnify and hold harmless the
other persons named as Selling Stockholders in the Registration Statement
("Claiming Stockholders") and the Company and its officers and directors (and
each person, if any, who controls the Company within the meaning of Section 15
of the the Securities Act or Section 20 of the Securities Exchange Act of 1934)
from and against any and all losses, claims, damages, liabilities or expenses
(including reasonable costs of investigation and reasonable attorney's fees)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or in any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with respect to information relating to the
Warrant Holder or the plan of distribution furnished to the Company by the
Warrant Holder expressly for inclusion in the Registration Statement, or any
amendment or supplement thereto. If any action or claim shall be brought or
asserted against a Claiming Stockholder in respect of which indemnity may be
sought against the Warrant Holder, the Claiming Stockholder shall have the
rights and duties given to the Warrant Holder under subsection (e)(ii) herein,
and the Warrant Holder shall have the rights and duties given to the Company
under subsection (e)(ii) herein. If any action or claim shall be brought or
asserted against the Company or its officers or directors (or any such
controlling person) in respect of which indemnity may be sought against the
Warrant Holder, the Company and its officers or directors (and such controlling
persons) shall have the rights and duties given to the Warrant Holder under
subsection (e)(ii) herein, and the Warrant Holder shall have the rights and
duties given to the Company under subsection (e)(ii) herein.
12. Remedies. The Company stipulates that the remedies at law of the
--------
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
13. Miscellaneous. This Warrant shall be governed by the laws of the
-------------
Commonwealth of Massachusetts. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or
-11-
<PAGE>
terminated orally but only by an instrument in writing signed by the Company and
the registered holder hereof. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid, to the address furnished to the Company in
writing by the last holder of this Warrant who shall have furnished an address
to the Company in writing. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions.
ISSUED as of this 20th day of December, 1995.
ORGANOGENESIS INC.
By: /s/ Herbert M. Stein
------------------------------
Herbert M. Stein
Chief Executive officer
-12-
<PAGE>
EXHIBIT 4.5.2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF COUNSEL
REASONABLY SATISFACTORY IN FORM AND SCOPE TO THE COMPANY THAT SUCH REGISTRATION
IS NOT REQUIRED UNDER THE SECURITIES ACT OF 1933.
THIS WARRANT IS SUBJECT TO RESTRICTIONS
ON TRANSFER AS PROVIDED HEREIN.
Warrant No.: 1991B-2 Number of Shares: 15,625
As of December 20, 1995 (Subject to Adjustment)
ORGANOGENESIS INC.
COMMON STOCK PURCHASE WARRANT
1. Number and Price of Shares Subject to Warrant. Subject to the terms
---------------------------------------------
and conditions set forth below, Foundation Danonia or its designee (the
"Holder") is entitled to purchase from Organogenesis Inc., a Delaware
corporation (the "Company"), at any time after the date hereof but prior to
April 3, 1996, 15,625 shares (which number of shares is subject to adjustment as
described below) of fully paid and nonassessable Common Stock of the Company,
$.Ol par value per share (the "Shares") upon surrender of this Warrant at the
principal office of the Company and upon payment of the purchase price at said
office in cash, by certified check or by wire transfer of immediately available
funds. Subject to adjustment as hereinafter provided, the purchase price of one
share of Common Stock (or such securities as may be substituted for one share of
Common Stock pursuant to the provisions hereinafter set forth) shall be $12.00
The purchase price of one share of Common Stock (or such securities as may be
substituted for one share of Common Stock pursuant to the provisions hereinafter
set forth) payable from time to time upon the exercise of this Warrant (whether
such price be the price specified above or an adjusted price determined as
hereinafter provided) is referred to herein as the "Warrant Price".
<PAGE>
2. Adjustment of Warrant Price and Number of Shares. The number and kind
------------------------------------------------
of securities issuable upon the exercise of this Warrant shall be subject to
adjustment from time to time upon the happening of certain events as follows:
(a) Adjustment for Dividends in Stock or Other Securities or
--------------------------------------------------------
Property. If, after the date hereof, the holders of the Common Stock of the
- --------
Company (or any shares of stock or other securities at the time issuable upon
the exercise of this Warrant) shall have received, or, on or after the record
date fixed for the determination of eligible stockholders, shall have become
entitled to receive, without payment therefor, other or additional stock or
other securities or property (other than cash) of the Company by way of
dividend, then and in each case, the holder of this Warrant shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Common Stock receivable upon exercise of this Warrant, and without payment of
any additional consideration, the amount of such other or additional stock or
other securities or property (other than cash) of the Company which such holder
would have received had it been the holder of record of such Common Stock on the
date of such dividend and had, during the period from the date hereof to and
including the date of such exercise, retained such shares and/or all other
additional stock available to it during such period, giving effect to all
adjustments called for during such period by paragraphs (b), (c), and (d) of
this Section 2.
(b) Adjustment for Reclassification, Reorganization or Merger. In
---------------------------------------------------------
case of any reclassification or change of the outstanding securities of the
Company or of any reorganization of the Company (or any other corporation the
stock or securities of which are at the time receivable upon the exercise of
this Warrant) or any similar corporate reorganization on or after the date
hereof, or in case, after such date, the Company (or any such other corporation)
shall merge with or into another corporation or convey all or substantially all
of its assets to another PERSON, then and in each such case the holder of this
Warrant, upon the exercise hereof at any time after the consummation of such
reclassification, change, reorganization, merger or conveyance, shall be
entitled to receive, in lieu of the stock or other securities and property
receivable upon the exercise hereof prior to such consummation, the stock or
other securities or property to which such holder would have been entitled upon
such consummation if such holder had exercised this Warrant immediately prior
thereto, all subject to further adjustment as provided in
-2-
<PAGE>
paragraphs (a), (c) and (d) of this Section 2; in each such case, the terms of
this Section 2 shall be applicable to the shares of stock or other securities
properly receivable upon the exercise of this Warrant after such consummation.
(c) Stock Splits and Reverse Stock Splits. If at any time on or
-------------------------------------
after the date hereof the Company shall subdivide its outstanding shares of
Common Stock into a greater number of shares, the Warrant Price in effect
immediately prior to such subdivision shall thereby be proportionately reduced
and the number of shares receivable upon exercise of this Warrant shall thereby
be proportionately increased; and, conversely, if at any time on or after the
date hereof the outstanding number of shares of Common Stock shall be combined
into a smaller number of shares, the Warrant Price in effect immediately prior
to such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of this Warrant shall thereby be proportionately
decreased.
(d) No Change--Necessary. The form of this Warrant need not be
--------------------
changed because of any adjustment in the Warrant Price or in the number of
shares of Common Stock issuable upon its conversion. A Warrant issued after any
adjustment on any partial conversion or upon replacement may continue to express
the same Warrant Price and the same number of shares of Common Stock
(appropriately reduced in the case of partial conversion) as are stated on this
Warrant as initially issued, and that Warrant Price and that number of shares
shall be considered to have been so changed as of the close of business on the
date of adjustment.
(e) No Impairment. The Company will not, by any voluntary action,
-------------
avoid or seek to avoid the observance or performance of any of the terms to be
observed or performed hereunder by the Company, but will at all times in good
faith assist in the carrying out of all the provisions of this Section 2 and in
the taking of all such action as may be necessary or appropriate in order to
protect the rights of the holders of this Warrant against impairment.
(f) Notices of-Record Date. In the event that the Company shall
----------------------
propose at any time to merge with or into any other corporation, or sell, lease
or convey all or substantially all its property or business, or to liquidate,
dissolve or wind up, then the Company shall send to the holder of this Warrant
at least 20 days' prior written notice of the date on which a record shall be
taken for determining rights to vote in respect of such event.
-3-
<PAGE>
3. No Stockholder Rights. This Warrant shall not entitle its holder to
---------------------
any of the rights of a stockholder of the Company.
4. Reservation of Stock. The Company covenants that during the period
--------------------
this Warrant is exercisable, the Company will reserve from its authorized and
unissued Common Stock a sufficient number of shares to provide for the issuance
of Common Stock upon the exercise of this Warrant and, from time to time, will
take all steps necessary to amend its Restated Certificate of Incorporation to
provide sufficient reserves of shares of Common Stock issuable upon exercise of
this Warrant. The Company agrees that its issuance of this Warrant shall
constitute full authority to its officers who are charged with the duty of
executing stock certificates to execute and issue the necessary certificates for
shares of Common Stock upon the exercise of this Warrant.
5. Exercise of Warrant. This Warrant may be exercised by the holder
-------------------
hereof by the surrender of this Warrant at the principal office of the Company,
accompanied by payment in full of the Warrant Price then in effect as described
above. This Warrant may be exercised in whole or in part. However, the Company
shall not be required upon exercise of this Warrant to issue any fractional
shares. This Warrant shall be deemed to have been exercised immediately prior to
the close of business on the date of its surrender for exercise as provided
above, and the person entitled to receive the shares of Common Stock issuable
upon such exercise shall be treated for all purposes as the holder of such
shares of record as of the close of business on such date. As promptly as
practicable on or after such date, the Company at its expense shall issue and
deliver to the person or persons entitled to receive the same a certificate or
certificates for the number of full shares of Common Stock issuable upon such
exercise. The shares of Common Stock issuable upon exercise hereof shall, upon
their issuance, be fully paid and nonassessable. In the event that this Warrant
is exercised in part, the Company at its expense will execute and deliver a new
Warrant of like tenor exercisable for the number of shares of Common Stock
remaining for exercise from this Warrant.
6. Certificate of Adjustment. Whenever the Warrant Price or number or
-------------------------
type of securities issuable upon exercise of this Warrant is adjusted, as herein
provided, the Company shall promptly deliver to the record holder of this
Warrant a certificate of an officer of the Company setting forth the nature of
such adjustment and a brief statement of the facts requiring such adjustment.
-4-
<PAGE>
7. Restriction on Transfer. This Warrant may be transferred only with
-----------------------
the prior written consent of the Company; the granting or withholding of such
consent to be in the Company's sole and absolute discretion.
8. Replacement of Warrants. On receipt of evidence reasonably
-----------------------
satisfactory to the Company of the loss, theft, destruction or mutilation of any
Warrant and, in the case of any such loss, theft or destruction of any Warrant,
on delivery of an indemnity agreement or security reasonably satisfactory in
form and amount to the Company or, in the case of any such mutilation, on
surrender and cancellation of such Warrant, the Company at its expense will
execute and deliver, in lieu thereof, a new Warrant of like tenor.
9. Investment Representations. The Holder hereby represents and warrants
--------------------------
to the Company that:
(a) This Warrant and the shares of Common Stock issued upon exercise
of this Warrant will be acquired for its own account or for the account of not
more than five (5) qualified foreign investors, and not with a view to or in
connection with the sale or distribution of any part thereof.
(b) The Holder understands that neither this Warrant nor the shares
of Common Stock issuable upon exercise of this Warrant will be registered under
the Securities Act of 1933, as amended (the "Securities Act") for purposes of
the sales contemplated herein, on the ground that the sale of this Warrant is
exempt from the registration and prospectus delivery requirements of the
Securities Act, and that the reliance of the Company on such exemption is
predicated in part on Holder's representations set forth herein.
(c) The Holder acknowledges that it is able to weigh for itself the
risk of purchasing this Warrant, and the Shares upon exercise of this Warrant,
and has the ability to bear the economic risks of such investments.
(d) The Holder understands that this Warrant and the shares of
Common Stock issuable upon exercise of this Warrant are restricted securities
within the meaning of Rule 144 under the Securities Act; that such securities
are not registered and must be held indefinitely unless they are subsequently
registered or an exemption from such registration is available that, in any
event, the exemption from registration under Rule 144 will not be available for
at least two years, and even then may not be
-5-
<PAGE>
available unless (i) a public trading market then exists for the Common Stock,
(ii) adequate information concerning the Company is then available to the
public, and (iii) other terms and conditions of Rule 144 are complied with; and
that any sale of such securities may be made by such Purchaser only in
accordance with such terms and conditions.
10. Restrictive Legends. Each certificate representing (i) the Shares and
-------------------
(ii) any other securities issued in respect of the Shares upon any stock split,
stock dividend, recapitalization, merger or similar event shall be stamped or
otherwise imprinted with a legend substantially in the following form (in
addition to any legend required by applicable state securities law in the
opinion of the Company's counsel):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN EFFECTIVE
REGISTRATION STATEMENT RELATED THERETO OR AN OPINION OF
COUNSEL REASONABLY SATISFACTORY IN FORM AND SCOPE TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933."
11. Registration Rights
-------------------
(a) Certain Definitions. As used in this Section 11, the following terms
-------------------
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
------------
Federal agency at the time administering the Securities Act.
"Registration Statement" means a registration statement filed by the
------------------------
Company with the Commission for a public offering and sale of securities of the
Company under the Securities Act.
"Registrable Shares" means (i) the shares of Common Stock issued or
--------------------
issuable upon exercise of the Warrants (as defined below) and (ii) any other
shares of Common Stock of the Company issued in respect of such shares (because
of stock splits, stock dividends, reclassifications, recapitalizations, or
similar events); provided, however, that shares of Common Stock which are
-------- -------
Registrable Shares shall cease to be Registrable Shares upon any sale pursuant
to a Registration Statement, Section 4(l) of the Securities Act or Rule 144
under the Securities Act. Wherever
-6-
<PAGE>
reference is made in this Warrant to a request or consent of holders of a
certain percentage of Registrable Shares, the determination of such percentage
shall include shares of Common Stock issuable upon exercise of this Warrant even
if such exercise has not yet been effected.
"Warrant Holders" means all holders of Warrants numbered 1991A-2 and
---------------
1991B-2 issued by the Company to the Holder on the date hereof. "Warrant
Holder" is synonymous with Holder.
"Warrants" means the common stock purchase warrants numbered 1991A-2
----------
and 1991B-2 issued by the Company to the Holder on the date hereof.
(b) Required Registrations. Warrant Holders holding in the aggregate at
----------------------
least 50% of the Registrable Shares may at any time request, in writing, that
the Company effect the registration on Form S-3 of Registrable Shares owned by
such Warrant Holders at the Company's expense. If the holders initiating the
registration intend to distribute the Registrable Shares by means of an
underwriting, they shall so advise the Company in their request. In the event
such registration is underwritten, the right of other Warrant Holders to
participate shall be conditioned on such Warrant Holders, participation in such
underwriting. Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Warrant Holders. Such
Warrant Holders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Warrant Holders
may request in such notice of election, subject to the approval of the
underwriter managing the offering. Thereupon, the Company shall, as
expeditiously as practicable, use its best efforts to effect the registration,
on Form S-3, of all Registrable Shares which the Company has been requested to
so register.
The Company shall not be required to effect more than one registration
pursuant to this paragraph (b); provided that a registration effected under
paragraph (b) above shall not be counted for the purpose of this limitation if
the Company elects to sell stock pursuant to a registration at the same time as
a registration is requested by Warrant Holders pursuant to paragraph (b).
-7-
<PAGE>
(c) Incidental Registration. Whenever the Company proposes to file a
-----------------------
Registration Statement (other than pursuant to paragraph (b)) at any time and
from time to time, it will, prior to such filing, give written notice to all
Warrant Holders of its intention to do so and, upon the written request of a
Warrant Holder or Warrant Holders given within 20 days after the Company
provides such notice (which request shall state the intended method of
disposition of such Registrable Shares), the Company shall use its best efforts
to cause all Registrable Shares which the Company has been requested by such
Warrant Holder or Warrant Holders to register to be registered under the
Securities Act to the extent necessary to permit their sale or other disposition
in accordance with the intended methods of distribution specified in the request
of such Warrant Holder or Warrant Holders; provided that the Company shall have
the right to postpone or withdraw any registration effected pursuant to this
paragraph (c) without obligation to any Warrant Holder.
In connection with any offering under this paragraph (c) involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such underwriting unless the holders thereof accept the terms of the
underwriting as agreed upon between the Company and the underwriters selected by
it, and then only in such quantity as will not, in the opinion of the
underwriters, jeopardize the success of the offering by the Company. If in the
opinion of the managing underwriter the registration of all, or part of, the
Registrable Shares which the holders have requested to be included would
materially and adversely affect such public offering, then the Company shall be
required to include in the underwriting only that number of Registrable Shares,
if any, which the managing underwriter believes may be sold without causing such
adverse effect. If the number of Registrable Shares to be included in the
underwriting in accordance with the foregoing is less than the total number of
shares which the holders of Registrable Shares have requested to be included,
then the holders of Registrable Shares who have requested registration and other
holders of shares of Common Stock entitled to include shares of Common Stock in
such registration shall participate in the underwriting pro rata based upon
their total ownership of shares of Common Stock of the Company. If any holder
would thus be entitled to include more shares than such holder requested to be
registered, the excess shall be allocated among other requesting holders pro
rata based upon their total ownership of Registrable Shares.
-8-
<PAGE>
(d) Registration Procedures. If and whenever the Company is required by
-----------------------
the provisions of this Section 11 to use its best efforts to effect the
registration of any of the Registrable Shares under the Securities Act, the
Company will, as expeditiously as possible:
(i) prepare and file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to cause such
Registration Statement to become and remain effective for a period of at least
six months from the effective date of such Registration Statement.
Notwithstanding anything contained herein, the Company does not and cannot
guarantee that the Warrant Holder or Warrant Holders will be able to resell the
Registrable Shares at any price even if the Registration Statement becomes and
remains effective for such period of time;
(ii) prepare and file with the commission any amendments and
supplements to the Registration Statement and the prospectus included in the
Registration Statement as may be necessary to keep the Registration Statement
effective for a period of at least six months from the effective date; and
(iii) use its best efforts to list such Registrable Shares on any
securities exchange on which the Common Stock of the Company is then listed, if
the listing of such securities is then permitted under the rules of such
exchange.
It shall be a condition precedent to the obligation of the Company to take
any action pursuant to this Section 11 that each prospective selling Warrant
Holder of the Registrable Shares shall furnish to the Company an instrument duly
executed by such Warrant Holder and such underwriter specifically for use in the
preparation of the Registration Statement containing such information regarding
the Warrant Holder and the Registrable Shares held by such Warrant Holder and
the intended method of disposition thereof as the Company shall reasonably
request and as shall be required in connection with the action to be taken by
the Company.
(e) Indemnification.
---------------
(i) The Company agrees to indemnify and hold harmless the Warrant
Holder from and against any and all losses, claims, damages, liabilities or
expenses (including reasonable costs of investigation and reasonable attorney's
fees) arising out of or based upon any untrue statement or alleged untrue
statement of a
-9-
<PAGE>
material fact contained in the Registration Statement or in any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that the indemnification contained in this
subsection (e) shall not apply in any respect to any information relating to the
Warrant Holder furnished to the Company by the Warrant Holder expressly for
inclusion in the Registration Statement, or any amendment or supplement thereto,
including, but not limited to, information so supplied by the Warrant Holder in
response to Items 7 and 8 of Form S-3.
(ii) If any action or claim shall be brought against the Warrant
Holder in respect of which indemnity may be sought against the Company in
accordance with subsection (e)(i), the Warrant Holder shall promptly notify the
Company in writing and the Company shall assume the defense thereof, including
the employment of counsel and payment of all fees and expenses. The Warrant
Holder shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the reasonable fees and expenses of such
counsel shall be at the expense of the Warrant Holder unless (XX) the Company
has agreed in writing to pay such fees and expenses, (YY) the Company has failed
to assume the defense and employ counsel, or (ZZ) the named parties to any such
action (including any impleaded party) include both the Warrant Holder and the
Company and the Warrant Holder shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Company (in which case, if the Warrant
Holder notifies the Company in writing that it elects to employ separate counsel
at the expense of the Company, the Company shall not have the right to assume
the defense of such action on behalf of the Warrant Holder, it being understood,
however that the Company shall not, in connection with any such action or
separate but substantially related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for all the
persons named as Selling Stockholders in the Registration Statement, which firm
shall be designated in writing by the Warrant Holder. The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company, but if settled with such written consent, or if there be
a final judgment for the plaintiff in any such action, the Company agrees to
indemnify and hold harmless the Warrant Holder from and against any loss,
liability, damage or expense by reason of such settlement or judgment.
-10-
<PAGE>
(iii) The Warrant Holder agrees, to indemnify and hold harmless the
other persons named as Selling Stockholders in the Registration Statement
("Claiming Stockholders") and the Company and its officers and directors (and
each person, if any, who controls the Company within the meaning of Section 15
of the the Securities Act or Section 20 of the Securities Exchange Act of 1934)
from and against any and all losses, claims, damages, liabilities or expenses
(including reasonable costs of investigation and reasonable attorney's fees)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement or in any amendment or
supplement thereto or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with respect to information relating to the
Warrant Holder or the plan of distribution furnished to the Company by the
Warrant Holder expressly for inclusion in the Registration Statement, or any
amendment or supplement thereto. If any action or claim shall be brought or
asserted against a Claiming Stockholder in respect of which indemnity may be
sought against the Warrant Holder, the Claiming Stockholder shall have the
rights and duties given to the Warrant Holder under subsection (e)(ii) herein,
and the Warrant Holder shall have the rights and duties given to the Company
under subsection (e)(ii) herein. IF any action or claim shall be brought or
asserted against the Company or its officers or directors (or any such
controlling person) in respect of which indemnity may be sought against the
Warrant Holder, the Company and its officers or directors (and such controlling
persons) shall have the rights and duties given to the Warrant Holder under
subsection (e)(ii) herein, and the Warrant Holder shall have the rights and
duties given to the Company under subsection (e)(ii) herein.
12. Remedies. The Company stipulates that the remedies at law of the
--------
Holder of this Warrant in the event of any default or threatened default by the
Company in the performance of or compliance with any of the terms of this
Warrant are not and will not be adequate, and that such terms may be
specifically enforced by a decree for the specific performance of any agreement
contained herein or by an injunction against a violation of any of the terms
hereof or otherwise.
13. Miscellaneous. This Warrant shall be governed by the laws of the
-------------
Commonwealth of Massachusetts. The headings in this Warrant are for purposes of
convenience and reference only, and shall not be deemed to constitute a part
hereof. Neither this Warrant nor any term hereof may be changed, waived,
discharged or
-11-
<PAGE>
terminated orally but only by an instrument in writing signed by the Company and
the registered holder hereof. All notices and other communications from the
Company to the holder of this Warrant shall be mailed by first class registered
or certified mail, postage prepaid, to the address furnished to the Company in
writing by the last holder of this Warrant who shall have furnished an address
to the Company in writing. The invalidity or unenforceability of any provision
hereof shall in no way affect the validity or enforceability of any other
provisions.
ISSUED as of this 20th day of December, 1995.
ORGANOGENESIS INC.
By: /s/ Herbert M. Stein
-------------------------
Herbert M. Stein
Chief Executive Officer
-12-
<PAGE>
EXHIBIT 4.5.3
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND MAY NOT BE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT RELATED THERETO
OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY
IN FORM AND SCOPE TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER THE
SECURITIES ACT OF 1933.
THIS WARRANT IS SUBJECT TO RESTRICTIONS
ON TRANSFER AS PROVIDED HEREIN.
ORGANOGENESIS INC.
-----------------
Warrant for the Purchase of Shares of Common Stock
--------------------------------------------------
No. 1991C-1 One Hundred Fifty Thousand Shares
FOR VALUE RECEIVED, ORGANOGENESIS INC., a Delaware corporation (the
"Company'), hereby certifies that Gerard Klauer Mattison & Co., Inc., or its
permitted assigns, is entitled to purchase from the Company, at any time or from
time to time commencing on November 14, 1992 and prior to 5: 00 P.M., New York
City time, on November 14,1996, One Hundred Fifty Thousand (150,000) fully paid
and non-assessable shares of the common stock, $.Ol par value per share, of the
Company for a purchase price of $30.55 per share. (Hereinafter, (i) said common
stock, together with any other equity securities which may be issued by the
Company with respect thereto or in substitution therefor, is referred to as the
"Common Stock," (ii) the shares of the Common Stock purchasable hereunder or
under any other Warrants (as hereinafter defined) are referred to as the
"Warrant Shares," (iii) the price payable for each of the Warrant Shares
hereunder is referred to as the "Per Share Warrant Price," (iv) this Warrant,
and all warrants hereafter issued in exchange or substitution for this Warrant
are referred to as the "Warrants" and (v) the holder of this Warrant is referred
to as the "Holder" and the holder of this Warrant and all other Warrants or
Warrant Shares issued upon the exercise of any Warrants are referred to as the
"Holders"). The Per Share Warrant Price is subject to adjustment as hereinafter
provided.
1. Exercise of Warrant. This Warrant may be exercised, in whole at
-------------------
any time or in part from time to time, commencing on November 14, 1992 and
<PAGE>
prior to 5:00 P.M., New York City time, on November 14, 1996, by the Holder by
the surrender of this Warrant (with the subscription form at the end hereof duly
executed) at the address set forth in Subsection 9(a) hereof, together with
proper payment of the Per Share Warrant Price multiplied by the number of
Warrant Shares for which the Warrant is then being exercised. Payment for
Warrant Shares shall be made by certified or official bank check payable to the
order of the Company. If this Warrant is exercised in part, this Warrant must be
exercised for a number of whole shares of the Common Stock, and the Holder is
entitled to receive a new Warrant covering the Warrant Shares which have not
been exercised. Upon such surrender of this Warrant, the Company will (a) issue
a certificate or certificates in the name of the Holder for the largest number
of whole shares of the Common Stock to which the Holder shall be entitled and,
if this Warrant is exercised in whole, in lieu of any fractional share of the
Common Stock to which the Holder shall be entitled, pay to the Holder cash in an
amount equal to the fair value of such fractional share (determined in such
reasonable manner as the Board of Directors of the Company shall determine), and
(b) deliver the other securities and properties receivable upon the exercise of
this Warrant, or the proportionate part thereof if this Warrant is exercised in
part, pursuant to the provisions of this Warrant.
2. Reservation of Warrant Shares; Listing. The Company agrees
--------------------------------------
that, prior to the expiration of this Warrant, the Company will at all times (a)
have authorized and in reserve, and will keep available, solely for issuance or
delivery upon the exercise of this Warrant, the shares of the Common Stock and
other securities and properties as from time to time shall be receivable upon
the exercise of this Warrant, free and clear of all restrictions on sale or
transfer (other than those imposed by applicable Federal and state securities
laws) and free and clear of all preemptive rights and rights of first refusal
and (b) keep the shares of the Common Stock receivable upon the exercise of this
Warrant listed on the American Stock Exchange or such other national securities
exchange upon which shares of the Company's Common Stock are then listed.
3. Protection Against Dilution.
---------------------------
3.1 Except as hereinafter provided, in case the Company shall at
any time after the date hereof issue or sell any shares of Common Stock (other
than the issuances or sales referred to in Subsection 3.7 hereof), including
shares held in the Company's treasury and shares of Common Stock issued upon the
exercise of any options, rights or warrants, to subscribe for shares Common
Stock and shares of Common Stock issued upon the direct or indirect conversion
or exchange of securities for shares of Common Stock, for a consideration per
share less than the Per Share Warrant Price in effect immediately prior to the
issuance or sale of such shares or the "Market Price" (as defined in Subsection
3.1(iv)) per share of Common Stock on the date immediately prior to the issuance
or sale of such shares, or without consideration, then forthwith upon such
issuance or sale, the Per Share Warrant Price shall (until another such issuance
or sale) be reduced (subject to the limitation set forth in Subsection 3-8) to
the price (calculated to the nearest full cent)
-2-
<PAGE>
equal to the quotient derived by dividing (A) an amount equal to the sum of (X)
the product of (a) the lower of (i) the Per Share Warrant Price in effect
immediately prior to such issuance or sale and (ii) the Market Price per share
of Common Stock on the date immediately prior to the issuance or sale of such
shares, in either event, reduced, but not below .001, by the positive difference
between the (u) Market Price per share of Common Stock on the date immediately
prior to the issuance or sale and (v) the amount per share received in
connection with such issuance or sale, multiplied by (b) the total number of
shares of Common Stock outstanding immediately prior to such issuance or sale
plus, (Y) the aggregate of the amount of all consideration, if any, received by
the Company upon such issuance or sale, by (B) the total number of shares of
Common Stock outstanding immediately after such issuance or sale; provided,
however, that in no event in shall the Per Share Warrant Price be adjusted
pursuant to this computation to an amount in excess of the Per Share Warrant
Price in effect immediately prior to such computation, except in the case of a
combination of outstanding shares of Common Stock, as provided by Subsection 3.3
hereof.
For the purposes of any computation to be made in accordance with
this Subsection 3.1, the following provisions shall be applicable.
(i) In case of the issuance or sale of shares of Common Stock
for a consideration part of all of which shall be cash, the amount of the cash
consideration therefor shall be deemed to be the amount of cash received by the
Company for such shares (or, if shares of Common Stock are offered by the
Company for subscription, the subscription price, or, if either of such
securities shall be sold to underwriters or dealers for public offering without
a subscription offering, the initial public offering price) before deducting
therefrom any compensation paid or discount allowed in the sale, underwriting or
purchase thereof by underwriters or dealers or others performing similar
services, or any expenses incurred in connection therewith and less any amounts
payable to security holders or any affiliates thereof, including without
limitation, pursuant to any employment agreement, royalty, consulting agreement,
covenant not to compete, earnout or contingent payment right or similar
arrangement, agreement or understanding, whether oral or written; all such
amounts being valued for the purposes hereof at the aggregate amount payable
thereunder, whether such payments are absolute or contingent, and irrespective
of the period or uncertainty of payment, the rate of interest, if any, or the
contingent nature thereof.
(ii) In case of the issuance or sale (otherwise than as a
dividend or other distribution on any stock of the Company) of shares of Common
Stock for a consideration part or all of which shall be other than cash, the
amount of the consideration therefor other than cash shall be deemed to be the
value of such consideration as determined in good faith by the Board of
Directors of the Company.
(iii) The reclassification of securities of the Company other
than shares of Common Stock into securities including shares of Common Stock
shall be
-3-
<PAGE>
deemed to involve the issuance of such shares Of Common Stock for a
consideration other than cash immediately prior to the close of business on the
date fixed for the determination of security holders entitled to receive such
shares, and the value of the consideration allocable to such shares of Common
Stock shall be determined as provided in subsection (ii) of this Subsection 3.1.
(iv) The number of shares of Common Stock at any one time
outstanding shall include the aggregate number of shares issued or issuable
(subject to the readjustment upon the actual issuance thereof) upon the exercise
of options, rights, warrants and upon the conversion or exchange of convertible
or exchangeable securities.
(v) As used herein, the phrase "Market Price" at any date shall
be deemed to be the last reported sale price, or, in the case no such reported
sale takes place on such day, the average of the last reported sale prices for
the last three (3) trading days, in either case as officially reported by the
American Stock Exchange or the principal securities exchange on which the Common
Stock is then listed or admitted to trading or by NASDAQ-NMS, or, if the Common
Stock is not listed or admitted to trading on any national securities exchange
or quoted by NASDAQ-NMS, the average closing bid price as furnished by the NASD
through NASDAQ or similar organization if NASDAQ is no longer reporting such
information, or if the Common Stock is not quoted on NASDAQ, as determined in
good faith by resolution of the Board of Directors of the Company, based on the
best information available to it.
3.2 In case the Company at any time after the date hereof issues
options, rights or warrants to subscribe for shares of Common Stock or issues
any securities convertible into or exchangeable for shares of Common Stock, for
a consideration per share less than the Per Share Warrant Price in effect or the
Market Price immediately prior to the issuance of such options, rights or
warrants, or such convertible or exchangeable securities, or without
consideration, the Per Share Warrant Price in effect immediately prior to the
issuance of such options, rights or warrants, or such convertible or
exchangeable securities, as the case may be, shall be reduced to a price
determined by making a computation in accordance with the provisions of
Subsection 3.1 hereof, provided that:
(a) The aggregate maximum number of shares of Common Stock,
as the case may be, issuable under such options, rights or
warrants shall be deemed to be issued and outstanding at the time
such options, rights or warrants were issued, and for a
consideration equal to the minimum purchase price per share
provided for in such options, rights or warrants at the time of
issuance, plus the consideration (determined in the same manner
as consideration received on the issue or sale of shares in
accordance with terms of the Warrants), if any, received by the
Company for such options, rights or warrants.
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(b) The aggregate maximum number of shares of Common Stock
issuable upon conversion or exchange of any convertible or
exchangeable securities shall be deemed to be issued and
outstanding at the time of issuance of such securities, and for a
consideration equal to the consideration (determined in the same
manner as consideration received on the issue or sale of shares
of Common Stock in accordance with the terms of the Warrants)
received by the Company for such securities, plus the minimum
consideration, if any, receivable by the Company upon the
conversion or exchange thereof.
(c) If any change shall occur in the price per share
provided for in any of the options, rights or warrants referred
to in subsection (a) of this Subsection 3.2, or in the price per
share at which the securities referred to in subsection (b) of
this Subsection 3.2 are convertible or exchangeable, such
options, rights or warrants or conversion or exchange rights, as
the case may be, shall be deemed to have expired or terminated on
the date when such price change became effective in respect of
shares not theretofore issued pursuant to the exercise or
conversion or exchange thereof, and the Company shall be deemed
to have issued upon such date new options, rights or warrants or
convertible or exchangeable securities at the new price in
respect of the number of shares issuable upon the exercise of
such options, rights or warrants or the conversion or exchange of
such convertible or exchangeable securities.
3.3 (a) If, after the date hereof, the holders of the Common
Stock of the Company (or any shares of stock or other securities at the time
issuable upon the exercise of the Warrants) shall have received, or, on or after
the record date fixed for the determination of eligible stockholders, shall have
become entitled to receive, without payment therefor, other or additional stock
or other securities or property (other than cash) of the Company by way of
dividend, then and in each case, the holder(s) of the Warrants shall, upon the
exercise hereof, be entitled to receive, in addition to the number of shares of
Common Stock receivable upon exercise of the Warrants, and without payment of
any additional consideration, the amount of such other or additional stock or
other securities or property (other than cash) of the Company which such
holder(s) would have received had it/they been the holder(s) of record of such
Common Stock on the date of such dividend and had, during the period from the
date hereof to and including the date of such exercise, retained such shares
and/or all other additional stock available to it during such period, giving
effect to all adjustments called for during such period by Subsection 3.1.
(b) If at any time on or after the date hereof, the Company
shall subdivide its outstanding shares of Common Stock into a greater
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number of shares, the Per Share Warrant Price in effect immediately prior to
such subdivision shall thereby be proportionately reduced and the number of
shares receivable upon exercise of the Warrants shall thereby be proportionately
increased; and, conversely, if at any time on or after the date hereof the
outstanding number of shares of Common Stock shall be combined into a smaller
number of shares, the Per Share Warrant Price in effect immediately prior to
such combination shall thereby be proportionately increased and the number of
shares receivable upon exercise of the Warrants shall thereby be proportionately
decreased.
(c) An adjustment made pursuant to this Subsection 3.3
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of a subdivision, combination or reclassification.
3.4 For the purpose of this Agreement, the term "Common Stock"
shall mean (i) the class of stock designated as Common Stock in the Amended and
Restated Certificate of Incorporation of the Company as the same may be amended
from time to time, or (ii) any other class of stock resulting from successive
changes or reclassification of such Common Stock consisting solely of changes in
par value, or from par value to no par value, or from no par value to par value.
3.5 In case of any consolidation of the Company with, or merger
of the Company with, or merger of the Company into, another corporation (other
than a consolidation or merger which does not result in any reclassification or
change of the outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a supplemental
warrant agreement providing that the holder of each Warrant then outstanding or
to be outstanding shall have the right thereafter (until the expiration of such
Warrant) to receive, upon exercise of such Warrant, the kind and amount of
shares of stock and other securities and property receivable upon such
consolidation or merger, by a holder of the number of shares of Common Stock of
the Company for which such Warrant might have been exercised immediately prior
to such consolidation, merger, sale or transfer. Such supplemental warrant
agreement shall provide for adjustments which shall be identical to the
adjustments provided in Section 3. The above provision of this subsection shall
similarly apply to successive consolidations or mergers.
3.6 Notwithstanding the foregoing, no adjustment of the Per
Share Warrant Price shall be made if the amount of said adjustment shall be less
than two cents (.02) per Warrant Share, provided, however, that in such case any
adjustment that would otherwise be required then to be made shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment so carried forward, shall amount
to at least two cents (.02) per Warrant Share.
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<PAGE>
3.7 In the event that the Company shall at any time prior to the
exercise of all Warrants declare a dividend (other than a dividend consisting
solely of shares of Common Stock) or otherwise distribute to its stockholders
any assets, property, rights, evidences of indebtedness, securities (other than
shares of Common Stock), whether issued by the Company or by another, or any
other thing of value, the Holders of the unexercised Warrants shall thereafter
be entitled, in addition to the shares of Common Stock or other securities and
property receivable upon the exercise thereof, to receive, upon the exercise of
such Warrants, the same property, assets, rights, evidences of indebtedness,
securities or any other thing of value that they would have been entitled to
receive at the time of such dividend or distribution as if the Warrants had been
exercised immediately prior to such dividend or distribution. At the time of any
such dividend or distribution, the Company shall make appropriate reserves to
ensure the timely performance of the provisions of this Subsection 3.7.
3.8 In no event shall any adjustment to the Per Share Warrant
Price be made pursuant to Subsection 3.1 which would reduce the Per Share
Warrant Price below $11.125.
4. Fully Paid Stock; Taxes. The Company agrees that the shares of
-----------------------
the Common Stock represented by each and every certificate for Warrant Shares
delivered on the exercise of this Warrant shall, at the time of such delivery,
be validly issued and outstanding, fully paid and nonassessable, and not subject
to preemptive rights or rights of first refusal, and the Company will take all
such actions as may be necessary to assure that the par value or stated value,
if any, per share of the Common Stock is at all times equal to or less than the
then Per Share Warrant Price. The Company further covenants and agrees that it
will pay, when due and payable, any and all Federal and state stamp, original
issue or similar taxes which may be payable in respect of the issue of any
Warrant Share or certificate therefor.
5. Registration Under Securities Act of 1933.
-----------------------------------------
5.1 The Company agrees that if, at any time during the period
commencing on November 14, 1992 and ending November 14, 1996, the Holder and/or
the Holders of any Warrants and/or Warrant Shares holding not less than 50% of
the Warrants and/or Warrant Shares outstanding at such time shall request that
the Company file, under the Securities Act of 1933 (the "Act"), a registration
statement under the Act covering not less than 75% of the Warrant Shares issued
or issuable upon the exercise of the Warrants, the Company will (i) promptly
notify each Holder of the Warrants that such registration statement will be
filed and that the Warrant Shares which are then held, and/or may be acquired
upon exercise of the Warrants by the Holder and such Holders will be included in
such registration statement at the Holder's and such Holders' request, (ii)
cause such registration statement to cover all Warrant Shares which it has been
so requested to include, (iii) use its best efforts to cause such registration
statement to become effective as soon
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<PAGE>
as practicable and (iv) take all other action necessary under any Federal or
state law or regulation of any governmental authority to permit all Warrant
Shares which it has been so requested to include in such registration statement
to be sold or otherwise disposed of, and will maintain such compliance with each
such Federal and state law and regulation of any governmental authority for the
period necessary for such Holders to effect the proposed sale or other
disposition, but in no event greater than 120 days from the effective date of
such registration statement. The Company shall be required to effect a
registration or qualification pursuant to this Subsection 5.1 on one occasion
only. If at the time of any request to register Warrant Shares pursuant to this
Section 5.1, the Company is engaged or has fixed plans to engage within 30 days
of the time of the request in a registered public offering as to which the
Holder or Holders may include Warrant Shares pursuant to Subsection 5.2 or is
engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, would be adversely affected by the requested
registration to the material detriment of the Company, then the Company may at
its option direct that such request be delayed for a period (a "Delay Period")
not in excess of six months from the effective date of such offering or the date
of commencement of such other material activity, as the case may be, such right
to delay a request to be exercised by the Company not more than once in any two-
year period.
5.2 The Company agrees that if, at any time and from time to
time during the period commencing on November 14, 1992 and ending on November
14, 1998, the Board of Directors of the Company shall authorize the filing of a
registration statement (any such registration statement being hereinafter called
a Subsequent Registration Statement") under the Act (otherwise than pursuant to
Subsection 5.1 hereof, or other than a registration statement on Form S-8 or
other form which does not include substantially the same information as would be
required in a form for the general registration of securities) in connection
with the proposed offer of any of its securities by it or any of its
stockholders, the Company will (i) promptly notify the Holder and each of the
Holders, if any, of other Warrants and/or Warrant Shares not sold previously
pursuant to this Section 5 that such Subsequent Registration Statement will be
filed, (ii) upon the written request of a Holder made within 20 days after the
giving of such notice by the Company, use its best efforts to include in the
securities covered by such Subsequent Registration Statement all Warrant Shares
which it has been so requested to include, (iii) use its best efforts to cause
such Subsequent Registration Statement to become effective as soon as
practicable and (iv) take all other action necessary under any Federal or state
law or regulation of any governmental authority to permit all Warrant Shares
which it has been so requested to include in such Subsequent Registration
Statement to be sold or otherwise disposed of, and will maintain such compliance
with each such Federal and state law and regulation of any governmental
authority for the period necessary for the Holder and such Holders to effect the
proposed sale or other disposition, but in no event greater than 120 days from
the effective date of such registration statement. The Company shall have the
right to postpone or withdraw
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<PAGE>
any registration effected pursuant to this Section 5.2 without obligation to any
Holder.
5.3 Whenever the Company is required pursuant to the provisions
of this Section 5 to include Warrant Shares in a registration statement, the
Company shall (i) furnish each Holder of any such Warrant Shares and each
underwriter of such Warrant Shares with such copies of the prospectus, including
the preliminary prospectus, conforming to the Act (and such other documents as
each such Holder or each such underwriter may reasonably request) in order to
facilitate the sale or distribution of the Warrant Shares, (ii) use its best
efforts to register or qualify such Warrant Shares under the blue sky laws (to
the extent applicable) of such jurisdiction or laws (to the extent applicable)
of such jurisdiction or jurisdictions as the Holders of any such Warrant Shares
and each underwriter of Warrant Shares being sold by such Holders shall
reasonably request and (iii) take such other actions as may be reasonably
necessary or advisable to enable such Holders and such underwriters to
consummate the sale or distribution in such jurisdiction or jurisdictions in
which such Holders shall have reasonably requested that the Warrant Shares be
sold.
5.4 The Company shall pay all expenses incurred in connection
with any registration statement or other action pursuant to the provisions of
this Section 5, other than underwriting discounts and commissions and applicable
transfer taxes relating to the Warrant Shares and any fees of legal counsel,
accountants or others retained by the Holders.
5.5 The Company will indemnify the Holders of Warrant Shares
which are included in each Subsequent Registration Statement referred to in
Subsections 5.1 and 5.2 substantially to the same extent as the Company has
indemnified the underwriters (the "Underwriters") of its public offering of
Common Stock pursuant to the Underwriting Agreement dated November 14, 1991,
between the Company and Gerard Klauer Mattison & Co., Inc. and such Holders will
indemnify the Company (and the underwriters, if applicable) with respect to
information furnished by them in writing to the Company for inclusion therein
substantially to the same extent as the Underwriters have indemnified the
Company.
6. Limited Transferability. This Warrant and the Warrant Shares may
-----------------------
not be sold, transferred, assigned or hypothecated by the Holder (a) except in
compliance with the provisions of the Act and state securities laws, and (b)
with respect to the Warrant (but not the Warrant Shares), except (i) to any
successor firm or corporation of Gerard Klauer Mattison & Co., Inc., (ii) to any
of the officers of Gerard Klauer Mattison & Co., Inc. or of any such successor
firm or (iii) in the case of an individual, pursuant to such individual's last
will and testament or the laws of descent and distribution, and is so
transferable only upon the books of the Company which it shall cause to be
maintained for the purpose. The Holder, by acceptance hereof, agrees that this
Warrant and all Warrant Shares purchased upon exercise hereof will be disposed
of only in accordance with the Act, the rules and regulations
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of the Securities and Exchange Commission promulgated thereunder and all state
securities laws applicable thereto and that the Company may require the Holder
to make such representations, and may place such legends on certificates
representing this Warrant or any Warrant Shares, as may be reasonably required
in the opinion of counsel to the Company to permit transfer without
registration. The Company may treat the registered Holder of this Warrant as he
or it appears on the Company's books at any time as the Holder for all purposes.
The Company shall permit any Holder of a Warrant or his duly authorized
attorney, upon written request during ordinary business hours, to inspect and
copy or make extracts from its books showing the registered holders of Warrants.
All warrants issued upon the transfer or assignment of this Warrant will be
dated the same date as this Warrant, and all rights of the Holder thereof shall
be identical to those of the Holder.
7. Loss, etc., of Warrant. Upon receipt of evidence satisfactory to
----------------------
the Company of the loss, theft, destruction or mutilation of this Warrant, and
of indemnity reasonably satisfactory to the Company, if lost, stolen or
destroyed, and upon surrender and cancellation of this Warrant, if mutilated,
the Company shall execute and deliver to the Holder a new Warrant of like date,
tenor and denomination.
8. Warrant Holder Not Shareholder. Except as otherwise provided
------------------------------
herein, this Warrant does not confer upon the Holder any right to vote or to
consent to or receive notice as a stockholder of the Company, as such, in
respect of any matters whatsoever, or any other rights or liabilities as a
stockholder, prior to the exercise hereof.
9. Communication
-------------
No notice or other communication under this Warrant shall be effective
unless, but any notice or other communication shall be effective and shall be
deemed to have been given if, the same is in writing and is mailed by first-
class mail, postage prepaid, addressed to:
(a) the Company at 83 Rogers Street, Cambridge, Massachusetts
02142 or such other address as the Company has designated in writing
to the Holder, or
(b) the Holder at 270 Madison Avenue, New York, New York 10016,
or such other address as the Holder has designated in writing to the
Company.
10. Headings.
--------
The headings of this Warrant have been inserted as a matter of
convenience and shall not affect the construction hereof.
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11. Applicable Law.
--------------
This Warrant shall be governed by and construed in accordance with the
law of the Commonwealth of Massachusetts without giving effect to the principles
of conflicts of law thereof.
IN WITNESS WHEREOF, ORGANOGENESIS INC. has caused this Warrant to be
signed by its Chief Executive Officer and its corporate seal to be hereunto
affixed and attested by its Secretary this 21st day of November, 1991.
----
ORGANOGENESIS INC.
By: /s/ Herbert M. Stein
----------------------
Herbert M. Stein
Chief Executive Officer
ATTEST:
/s/ Crispin B. Weinberg
- -----------------------
Secretary
[Corporate Seal]
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<PAGE>
SUBSCRIPTION
------------
The undersigned, ___________________, pursuant to the provisions of
the foregoing Warrant, hereby agrees for and purchase _________________ shares
of the Common Stock of ORGANOGENESIS INC. covered by said Warrant, and makes
payment therefor in full at the price per share provided by said Warrant.
Dated:_________________ Signature: _____________________
Address:___________________
ASSIGNMENT
----------
FOR VALUE RECEIVED ________________ hereby sells, assigns and
transfers unto _______________________ the foregoing Warrant and all rights
evidenced thereby, and does irrevocably constitute and appoint
____________________, attorney, to transfer said Warrant on the books of
ORGANOGENESIS INC.
Dated:_________________ Signature:______________________
Address:____________________
PARTIAL ASSIGNMENT
------------------
FOR VALUE RECEIVED ________________ hereby assigns and transfers unto
______________________ the right to purchase ______ shares of the Common Stock
of ORGANOGENESIS INC. by the foregoing Warrant, and a proportionate part of said
warrant and the rights evidenced hereby, and does irrevocably constitute and
appoint _________________, attorney, to transfer that part of said Warrant on
the books of ORGANOGENESIS INC.
Dated:_________________ Signature:______________________
Address:____________________
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EXHIBIT 5
HALE AND DORR
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
May 16, 1996
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-3 (the "Registration Statement"), filed with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended, for the registration of 234,375 shares of Common Stock, $.01 par
value per share (the "Shares"), of Organogenesis Inc., a Delaware corporation
(the "Company"), held by the Selling Stockholders, as defined in the
Registration Statement.
We have examined the Registration Statement and all exhibits thereto, all as
filed with the Commission. We have also examined and relied upon the
originals, or copies of minutes of meetings or actions taken by unanimous
written consent of the Board of Directors of the Company, the By-laws of the
Company and the Restated Certificate of Incorporation of the Company, as
amended, and such other documents and instruments as in our judgment are
necessary or appropriate to enable us to render the opinions expressed below.
In our examination of the foregoing documents, we have assumed (i) the
genuineness of all signatures and the authenticity of any documents submitted
to us as originals, (ii) the conformity to the originals of any documents
submitted to us as conformed or photostatic copies and (iii) the authenticity
of the originals of the latter documents.
We have not made an independent review of the laws of any state or
jurisdiction other than the General Corporation Law statute of the State of
Delaware and the United States. Accordingly, we express no opinion herein with
respect to the laws of any state or jurisdiction other than the General
Corporation Law statute of the State of Delaware and the United States.
Based upon the foregoing, we are of the opinion that the Shares have been
duly authorized and are validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as part of the Registration
Statement and to the use of our name therein and in the related Prospectus
under the caption "Legal Matters."
Very truly yours,
/s/ Hale and Dorr
Hale and Dorr
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement of Organogenesis Inc. (the "Company") on this Form S-3 of our report
dated February 16, 1996, on our audits of the consolidated financial
statements of Organogenesis Inc. as of December 31, 1995 and 1994 and for each
of the three years in the period ended December 31, 1995 which report is
included in the Company's Report on Form 10-K filed with the Securities and
Exchange Commission on March 29, 1996. We also consent to the reference to our
Firm under the caption "Experts."
/s/ Coopers & Lybrand L.L.P.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 16, 1996
