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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
BIOPURE CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 04-2836871
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
11 Hurley Street
Cambridge, Massachusetts 02141
(Address of Principal Executive Offices)
BIOPURE CORPORATION CAPITAL ACCUMULATION PLAN
(Full title of the Plan)
JANE KOBER
SENIOR VICE PRESIDENT
Biopure Corporation
11 Hurley Street
Cambridge, Massachusetts
(Name and address of agent for service)
(617) 234-6500
(Telephone number, including area code, of agent for service)
------------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================================
Title of Proposed Proposed Amount of
Securities To Be Amount To Be Maximum Maximum Registration Fee
Registered Registered(1) Offering Aggregate
Price per Offering
Share (2) Price(2)
---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock (3) 97,264 $20.5625 $2,000,000 $528
=====================================================================================================================
</TABLE>
(1) Being offered under our Capital Accumulation Plan, a profit sharing plan
which is qualified under Section 401(a) of the Internal Revenue Code.
(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 amended (the "Securities Act") based upon the
average high and low prices of the common stock reported on October 23,
2000.
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(3) As well as associated preferred stock purchase rights. In addition,
pursuant to Rule 416(c) under the Securities Act of 1933, this registration
statement also covers an indeterminate amount of interests to be offered or
sold pursuant to the employee benefit plan described herein.
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PART I
EXPLANATORY NOTE
As permitted by the rules of the Securities and Exchange Commission (the
"Commission"), this registration statement omits the information specified in
Part I of Form S-8. The documents containing the information specified in Part I
will be delivered to the participants in the plan as required by Securities Act
Rule 428(b). Such documents are not being filed with the Commission as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE:
The following documents filed by the Registrant with the Commission are
incorporated herein by reference.
(a) the Company's Annual Report on Form 10-K for the year ended October
31, 1999.
(b) the Company's Quarterly Reports on Form 10-Q for the quarters ended
January 29, 2000, April 29, 2000 and July 29, 2000.
(c) The description of the Common Stock contained in the Registrant's
Registration Statement on Form 8-A (File No. 001- 15167), filed under the
Securities Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
(d) The description of the preferred stock purchase rights contained in
Biopure's registration statement on Form 8-A dated November 4, 1999 (File No.
000-27933), filed under the Securities Exchange Act of 1934, including any
amendment or report filed for purposes 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
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our Restated Certificate of Incorporation provides that each of our
directors and officers shall be indemnified and held harmless by Biopure, to the
fullest extent authorized by the
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Delaware General Corporation Law, against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred by reason of the fact that
he or she is a director or officer.
The Delaware General Corporation Law authorizes a corporation to
indemnify its directors and officers provided that the corporation shall not
eliminate or limit the liability of a director as follows:
- for any action brought by or in the right of a corporation where the
director or officer is adjudged to be liable to the corporation,
except where a court determines the director or officer is entitled to
indemnity,
- for acts or omissions not in good faith or which involve conduct that
the director or officer believes is not in the best interests of the
corporation,
- for knowing violations of the law
- for any transaction from which the directors derived an improper
personal benefit, and
- for payment of dividends or approval of stock repurchases or
redemptions leading to liability under Section 174 of the Delaware
General Corporation Law.
The Delaware General Corporation Law requires a corporation to
indemnify a director or officer to the extent that the director or officer has
been successful, on the merits or otherwise, in defense of any action, suit or
proceeding for which indemnification is lawful.
Our Restated Certificate of Incorporation also provides directors and
officers with the right to be paid by Biopure for expenses (including attorneys'
fees) incurred in defending any proceeding in advance of the proceeding's final
disposition. If a claim is not promptly paid in full by Biopure, as further
described in the Restated Certificate of Incorporation, the director or officer
who is entitled to indemnification may bring suit against Biopure to recover the
unpaid amount of the claim. These rights of indemnification and advancement of
expenses conferred in our Restated Certificate of Incorporation are not
exclusive of any other right which may be acquired under any statute, by-law,
agreement or otherwise.
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ITEM 8. EXHIBITS.
*3.1 Restated Certificate of Incorporation of Biopure Corporation
**3.2 By-laws of Biopure Corporation
***10.1 Rights Agreement dated September 24, 1999 between Biopure Corporation
and American Stock Transfer & Trust Company
10.2 Biopure Corporation Capital Accumulation Plan
23.1 Consent of Ernst & Young LLP.
24.1 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement).
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* Filed with Registration Statement on Form S-1 (File No. 333-30382)
** Filed with Registration Statement on Form S-1 (File No. 333-78829)
*** Filed with Registration Statement on Form 8-A (File No. 000-27933)
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ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes.
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of 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) 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, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post- effective amendment shall be
deemed to be a new registration statement relating to the securities
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offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1933 that is
incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the 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 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the city of Cambridge, state of Massachusetts, on this 30th day
of October, 2000.
BIOPURE CORPORATION
By: /s/ Francis H. Murphy
-------------------------------
Francis H. Murphy
Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Francis
H. Murphy and Jane Kober, or either of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his 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-8 of Biopure Corporation and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in or 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 attorney-in-fact and agents or any of them or their or
his substitute or 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>
By:/s/ Carl W. Rausch Chairman of the October 20, 2000
--------------------------- Board, Chief
Carl W. Rausch Executive
Officer
(principal
executive
officer)
</TABLE>
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<TABLE>
<S> <C> <C>
By:/s/ Paul A. Looney Director, October 20, 2000
--------------------------- President
Paul A. Looney (principal
operating
officer)
By:/s/ Francis H. Murphy Chief Financial October 20, 2000
--------------------------- Officer
Francis H. Murphy (principal
financial and
accounting
officer)
By:/s/ David N. Judelson Director October 20, 2000
---------------------------
David N. Judelson
By:/s/ Daniel P. Harrington Director October 20, 2000
---------------------------
Daniel P. Harrington
By:/s/ C. Everett Koop Director October __, 2000
---------------------------
C. Everett Koop
By:/s/ Charles A. Sanders Director October 20, 2000
---------------------------
Charles A. Sanders,M.D.
By: Director October __, 2000
--------------------------
Stephen A. Kaplan
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
NUMBER DESCRIPTION OF EXHIBIT
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<S> <C>
*3.1 RESTATED CERTIFICATE OF INCORPORATION OF
BIOPURE CORPORATION
**3.2 BY-LAWS OF BIOPURE CORPORATION
***10.1 RIGHTS AGREEMENT DATED SEPTEMBER 24, 1999
BETWEEN BIOPURE CORPORATION AND AMERICAN
STOCK TRANSFER & TRUST COMPANY
10.2 BIOPURE CORPORATION CAPITAL ACCUMULATION
PLAN
23.1 CONSENT OF ERNST & YOUNG LLP
24.1 POWER OF ATTORNEY (SEE "POWER OF ATTORNEY"
IN THE REGISTRATION STATEMENT)
</TABLE>
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* FILED WITH S-1 REGISTRATION STATEMENT (FILE NO. 333-30382)
** FILED WITH S-1 REGISTRATION STATEMENT (FILE NO. 333-78829)
*** FILED WITH FORM 8-A DATED NOVEMBER 4, 1999 (FILE NO. 000-27933)
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