<PAGE>
As filed with the Securities and Exchange Commission on July 16, 1999
REGISTRATION NO. 333 -
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------------
FORM S-8
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 No.)
150 DAN ROAD
CANTON, MASSACHUSETTS 02021
(781) 575-0775
(Address of Principal Executive Offices)
1995 STOCK OPTION PLAN
1999 NONQUALIFIED STOCK OPTION PLAN
(Full titles of the plans)
HERBERT M. STEIN, CHIEF EXECUTIVE OFFICER
ORGANOGENESIS INC.
150 DAN ROAD
CANTON, MASSACHUSETTS 02021
(781) 575-0775
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPY TO:
NEIL H. ARONSON, ESQUIRE
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
(617) 542-6000
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate Amount of
registered registered(1) per share(2) offering price(2) registration fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par
value 3,070,312 $9.09375 $27,920,649.75 $7,761.94
=================================================================================================
</TABLE>
(1) The number of shares of common stock, par value $.01 per share ("Common
Stock"), stated above consists of the aggregate number of additional shares
not previously registered which may be sold upon the exercise of options
which have been granted and/or may hereafter be granted under the 1995 Stock
Option Plan and the 1999 Nonqualified Stock Option Plan (collectively, the
"Plans"). The maximum number of shares which may be sold upon the exercise
of such options granted under the Plans is subject to adjustment in
accordance with certain anti-dilution and other provisions of the Plans.
Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement covers, in
addition to the number of shares stated above, an indeterminate number of
shares which may be subject to grant or otherwise issuable after the
operation of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act of 1933 as follows: (i) in the case of shares of Common
Stock which may be purchased upon exercise of outstanding options, the fee
is calculated on the basis of the price at which the options may be
exercised; and (ii) in the case of shares of Common Stock for which options
have not yet been granted and the option price of which is therefore
unknown, the fee is calculated on the basis of the average of the high and
low sale prices per share of the Common Stock on the American Stock Exchange
as of a date (July 9, 1999) within 5 business days prior to filing this
Registration Statement.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
EXPLANATORY NOTE
----------------
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission, the information specified
by Part I of Form S-8 has been omitted from this Registration Statement on Form
S-8 for offers of common stock pursuant to the Plans. The information required
by Part I is included in the documents sent or given to participants in the 1995
Stock Option Plan and the 1999 Nonqualified Stock Option Plan, pursuant to Rule
428(b)(1) of the Securities Act of 1933. This Registration Statement on Form S-8
registers (1) 1,000,000 shares of common stock pursuant to the Company's 1999
Nonqualified Stock Option Plan and (2) 2,070,312 additional shares of common
stock pursuant to the 1995 Stock Option Plan. A Registration Statement on Form
S-8 (File No. 333-64319), registering an aggregate of 1,500,000 shares of common
stock (subsequently adjusted to include an aggregate of 2,929,688 shares of
common stock as a result of stock dividends and splits pursuant to Rule 416 of
the Securities Act of 1933) under the 1995 Stock Option Plan was filed with the
Securities and Exchange Commission on November 16, 1995, and is incorporated
herein by reference.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
- --------------------------------------------------------
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998 filed on March 31, 1999 (File No. 1-09898).
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1999 filed on May 14, 1999.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 8-A, File No.1-09898 filed under the Securities
Exchange Act of 1934, including any amendment or report filed for the purpose of
updating such description.
All reports and other documents filed by the Registrant after the date
hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934 prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents.
Item 4. Description of Securities.
- ----------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
- -----------------------------------------------
The validity of the issuance of the shares of Common Stock registered under
this Registration Statement has been passed upon for the Company by Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. Kenneth
J. Novack, who is Of Counsel to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C., served on the Board of Directors of the Company from March 1998 until May
1999. As of March 19, 1999, Mr. Novack owned 5,976 shares of the Company's
common stock and an additional 3,750 shares of common stock subject to
outstanding options exercisable within 60 days following March 19, 1999.
Item 6. Indemnification of Directors and Officers.
- --------------------------------------------------
Section 145 of the General Corporation Law of the State of Delaware provides
that the Company has the power to indemnify its directors, officers, employees
or agents and certain other persons serving at its request in related capacities
against amounts paid and expenses incurred in connection with an action or
proceeding to which he or she is or is threatened to be made a party by reason
of such position,
II-1
<PAGE>
if such person shall have acted in good faith and in a manner he reasonably
believed to be in or not opposed to our best interests, 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 on behalf of the
Company, no indemnification shall be made with respect to any matter as to which
such person shall have been adjudged to be liable to us 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 permits the Company
to provide in its certificate of incorporation that its 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 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 we 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 us
or our 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 our officers and directors against certain liabilities.
II-2
<PAGE>
Item 7. Exemption from Registration Claimed.
- --------------------------------------------
Not applicable.
Item 8. Exhibits.
- -----------------
EXHIBIT
NUMBER DESCRIPTION
________________________________________________________________________________
4.1 The Restated Certificate of Incorporation of the Registrant (previously
filed as an Exhibit 3a to the Registrant's Registration Statement on
Form S-1, File No. 33-9832 and incorporated herein by reference).
4.2 Certificate of Amendment to the Restated Certificate of Incorporation
of the Registrant (previously filed as Exhibit No. 3(a) to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1990, filed April 1, 1991 and incorporated herein by reference).
4.3 Certificate of Amendment to the Restated Certificate of Incorporation
of the Registrant (filed herewith).
4.4 By-Laws of the Registrant, as amended (previously filed as an exhibit
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed May 14, 1999 and incorporated herein by
reference).
4.5 Specimen Common Stock Certificate (previously filed as Exhibit No. 4.3
to the Registrant's Registration Statement on Form S-1, File No.
33-9832 and incorporated herein by reference).
4.6 1995 Stock Option Plan (previously filed as Appendix A to the Company's
Definitive Proxy Statement filed April 14, 1995 and incorporated herein
by reference).
4.7 1999 Nonqualified Stock Option Plan (previously filed as Exhibit 10(x)
to the Registrant's Annual Report on Form 10-K for year ended December
31, 1998, filed March 31, 1999 and incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of this Registration
Statement).
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<PAGE>
Item 9. Undertakings.
- ---------------------
A. Rule 415 Offering
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b)(sec.230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
B. Filings Incorporating Subsequent Exchange Act Documents by Reference
The undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is
II-4
<PAGE>
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Request for Acceleration of Effective Date or Filing of Registration
Statement on Form S-8
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 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.
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of 1933,
the registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Canton, Commonwealth of
Massachusetts, on July 14, 1999.
ORGANOGENESIS INC.
By: /s/ Herbert M. Stein
--------------------
Herbert M. Stein
Chief Executive Officer
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<PAGE>
POWER OF ATTORNEY
-----------------
Each person whose signature appears below constitutes and appoints Herbert M.
Stein and Donna Abelli Lopolito, or any of them, his attorney-in-fact, each with
the power of substitution, for him in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this registration
statement on Form S-8, (or any other registration statement for the same
offering that is to be effective upon filing pursuant to Rule 462(b) or 464
under the Securities Act of 1933) and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby 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, as full to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them or their or
his substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Herbert M. Stein Chief Executive Officer July 14, 1999
- --------------------------- and Chairman of the Board
Herbert M. Stein (principal executive officer)
/s/ David T. Rovee President, Chief Operating July 12, 1999
- --------------------------- Officer and Director
David T. Rovee
/s/ Donna Abelli Lopolito Vice President, July 13, 1999
- --------------------------- Chief Financial Officer,
Donna Abelli Lopolito Treasurer and Secretary
(principal financial officer
and principal accounting officer)
/s/ Richard S. Cresse Director July 9, 1999
- ---------------------------
Richard S. Cresse
/s/ Albert Erani Director July 13, 1999
- ---------------------------
Albert Erani
/s/ Bjorn R. Olson Director July 8, 1999
- ---------------------------
Bjorn R. Olsen
/s/ Marguerite A. Piret Director July 8, 1999
- ---------------------------
Marguerite A. Piret
/s/ Anton E. Schrafl Director July 14, 1999
- ---------------------------
Anton E. Schrafl
</TABLE>
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<PAGE>
ORGANOGENESIS INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
EXHIBIT
NUMBER DESCRIPTION
________________________________________________________________________________
4.1 The Restated Certificate of Incorporation of the Registrant (previously
filed as an Exhibit 3a to the Registrant's Registration Statement on
Form S-1, File No. 33-9832 and incorporated herein by reference).
4.2 Certificate of Amendment to the Restated Certificate of Incorporation
of the Registrant (previously filed as Exhibit No. 3(a) to the
Registrant's Annual Report on Form 10-K for the year ended December 31,
1990, filed April 1, 1991 and incorporated herein by reference).
4.3 Certificate of Amendment to the Restated Certificate of Incorporation
of the Registrant (filed herewith).
4.4 By-Laws of the Registrant, as amended (previously filed as an exhibit
to the Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999, filed May 14, 1999 and incorporated herein by
reference).
4.5 Specimen Common Stock Certificate (previously filed as Exhibit No. 4.3
to the Registrant's Registration Statement on Form S-1, File No.
33-9832 and incorporated herein by reference).
4.6 1995 Stock Option Plan (previously filed as Appendix A to the Company's
Definitive Proxy Statement filed April 14, 1995 and incorporated herein
by reference).
4.7 1999 Nonqualified Stock Option Plan (previously filed as Exhibit 10(x)
to the Registrant's Annual Report on Form 10-K for year ended December
31, 1998, filed March 31, 1999 and incorporated herein by reference).
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5).
24 Power of Attorney (set forth on the signature page of this Registration
Statement).
<PAGE>
EXHIBIT 4.3
CERTIFICATE OF AMENDMENT OF RESTATED CERTIFICATE
OF INCORPORATION
OF
ORGANOGENESIS INC.
IT IS HEREBY CERTIFIED THAT:
1. The name of the corporation (hereinafter referred to as the "Corporation") is
ORGANOGENESIS INC.
2. The Restated Certificate of Incorporation of the Corporation, filed with the
Secretary of State of the State of Delaware on October 27, 1986, as amended
on October 18, 1990 and on August 13, 1996, is hereby further amended by
deleting the first paragraph of Article FOURTH in its entirety and replacing
it with the following paragraph in lieu thereof:
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have the authority to issue is 80,000,000 shares of Common
Stock, par value $0.01 per share, and 1,000,000 shares of Preferred Stock,
$1.00 par value per share.
3. The aforesaid Amendment of the Restated Certificate of Incorporation of the
Corporation was duly adopted pursuant to the applicable provisions of
Sections 211 and 242 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment
to be signed by and attested by its duly authorized officers this 30th day of
June, 1999.
ORGANOGENESIS INC.
By: /s/ Herbert M. Stein
---------------------
Name: Herbert M. Stein
Title: Chief Executive Officer
ATTEST:
/s/ Donna L. Abelli
- ----------------------
Donna L. Abelli
Secretary
<PAGE>
EXHIBIT 5
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300
Fax: 202/434-7400
July 15, 1999
Organogenesis Inc.
150 Dan Road
Canton, Massachusetts 02021
Ladies and Gentlemen:
We have acted as counsel to Organogenesis Inc., a Delaware corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission of a Registration Statement on Form S-8 (the
"Registration Statement"), pursuant to which the Company is registering under
the Securities Act of 1933, as amended, 3,070,312 shares (the "Shares") of its
common stock, $.01 par value per share (the "Common Stock") as follows: (i) an
additional 2,070,312 shares of Common Stock for issuance under the 1995 Stock
Option Plan (the "1995 Plan") and (ii) 1,000,000 shares of Common Stock for
issuance under the 1999 Nonqualified Stock Option Plan (the "1999 Plan"). This
opinion is being rendered in connection with the filing of the Registration
Statement.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and By-Laws, both as currently in effect; such
other records of the corporate proceedings of the Company and certificates of
the Company's officers as we have deemed relevant; and the Registration
Statement and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly and validly authorized by the Company and (ii) the Shares, when
paid for and issued in accordance with the terms of the 1995 Plan or the 1999
Plan, will be validly issued, fully paid and non-assessable.
Our opinion is limited to the federal securities laws of the United
States, the laws of the Commonwealth of Massachusetts and the corporate laws of
the State of Delaware, and we express no opinion with respect to the laws of any
other jurisdiction. No opinion is expressed herein with respect to the
qualification of the Shares under the securities or blue sky laws of any state
or any foreign jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C.
MINTZ, LEVIN, COHN, FERRIS,
cc: Board of Directors GLOVSKY and POPEO, P.C.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 30, 1999 relating to the
consolidated financial statements, which appears in the 1998 Annual Report to
Shareholders of Organogenesis Inc., which is incorporated by reference in
Organogenesis Inc.'s Annual Report on Form 10-K for the year ended December 31,
1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Boston, Massachusetts
July 15, 1999
