<PAGE> 1
As filed with the Securities and Exchange Commission on December 22, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CREATIVE BIOMOLECULES, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
94-2786743
(I.R.S. Employer Identification No.)
45 SOUTH STREET, HOPKINTON, MASSACHUSETTS 01748 (508) 782-1100
(Address of Principal Executive Offices)
CREATIVE BIOMOLECULES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
MICHAEL M. TARNOW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CREATIVE BIOMOLECULES, INC.
45 SOUTH STREET
HOPKINTON, MA 01748
(508) 435-9001
(Name and address of agent for service)
----------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title of each class of to be offering price aggregate registration
securities to be registered registered(1) per share(2) offering price(2) fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common stock,
par value $.01 per share........ 250,000 shares $2.44 $610,000 $169.58
=====================================================================================================
</TABLE>
(1) The number of shares of common stock, $.01 par value (the "Common Stock"),
stated above consists of the aggregate number of shares which may be sold upon
the exercise of options which may hereafter be granted under the Creative
BioMolecules, Inc. Employee Stock Purchase Plan (the "Plan"). The maximum number
of shares which may be sold upon the exercise of such options granted under the
Plan are subject to adjustment in accordance with certain anti-dilution and
other provisions of the Plan. Accordingly, pursuant to Rule 416 under the
Securities Act of 1933, as amended (the "1933 Act"), this Registration Statement
covers, in addition to the number of shares stated above, an indeterminable
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 1933 Act as
follows: 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 prices per share of
the Common Stock on The Nasdaq Stock Market ("Nasdaq") as of a date (December
16, 1998) within 5 business days prior to filing this Registration Statement.
<PAGE> 2
EXPLANATORY NOTE
In accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission (the "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
Plan.
<PAGE> 3
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:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997 filed with the Commission on March 30, 1998.
2. The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1998, June 30, 1998 and September 30, 1998, filed with
the Commission on May 14, 1998, August 14, 1998 and November 13, 1998,
respectively.
3. The Company's Current Reports on Form 8-K filed with the
Commission on June 5, 1998, October 13, 1998 and October 21, 1998.
4. The description of the Common Stock filed with the Commission
included in the Registrant's registration statement on Form 8-A under the
Securities Exchange Act of 1934, as amended (the "1934 Act") filed with the
Commission on December 3, 1992, including any amendment or report filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the Registrant
with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934
Act prior to the filing of a post-effective amendment which indicates that all
securities covered by this Registration Statement have been sold or which
deregisters all such securities then remaining unsold shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of the
filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
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. Members
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. and certain members of
their families and trusts for their benefit own an aggregate of approximately
14,000 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Incorporated herein by reference from Part II, Item 14 of the
Registrant's Registration Statement on Form S-1 (Registration No. 33-46200), as
amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
<PAGE> 4
ITEM 8. EXHIBITS.
Exhibit No. Description
- ----------- -----------
(4.1) Form of Common Stock Certificate (filed as Exhibit 4.2 to the
Registration Statement on Form S-1, Registration No. 33-46200, as
amended, and incorporated herein by reference)
(4.2) Restated Certificate of Incorporation, as amended, of the Registrant
(filed as Exhibit 3.1) to Registrant's Annual Report on Form 10-K for
the period ended September 30, 1995 (File No. 0-19910), and
incorporated herein by reference)
(4.3) Restated By-Laws of the Registrant (filed as Exhibit 3.4 to Form S-1
Registration Statement (Registration No. 33-46200), or amendments
thereto, and incorporated herein by reference)
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the original issuance of securities being
registered
(23.1) Consent of Deloitte & Touche LLP
(23.2) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5)
(24) Power of Attorney to file future amendments (included in Part II of the
Registration Statement)
(99) Creative BioMolecules, Inc. Employee Stock Purchase Plan, as amended on
April 16, 1998 (filed as an Exhibit to the Registrant's Preliminary
Proxy Statement for 1998 Annual Meeting of Stockholders (File No.
0-19910))
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 1933 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, represents a fundamental
change in the information set forth in the 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 this Registration Statement.
(2) That, for the purpose of determining any liability
under the 1933 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.
<PAGE> 5
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 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 1933 Act and will be governed by the final
adjudication of such issue.
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Town of Hopkinton, Massachusetts, on December 21, 1998.
CREATIVE BIOMOLECULES, INC.
By: /s/ Wayne E. Mayhew III
-----------------------------------
Wayne E. Mayhew III
Vice President and Chief Financial
Officer, Treasurer and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael M. Tarnow and Wayne E. Mayhew
III, 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 to this
registration statement (including post-effective amendments), 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, as fully 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 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.
Signatures Title Date
- ---------- ----- ----
/s/ Brian H. Dovey Chairman of the Board December 21, 1998
- ---------------------------- and Director
Brian H. Dovey
/s/ Michael M. Tarnow President, Chief Executive December 21, 1998
- ---------------------------- Officer and Director
Michael M. Tarnow (principal executive officer)
/s/ Charles Cohen Chief Scientific Officer December 21, 1998
- ---------------------------- and Director
Charles Cohen, Ph.D.
/s/ Wayne E. Mayhew III Vice President and Chief December 21, 1998
- ---------------------------- Financial Officer,
Wayne E. Mayhew III Treasurer and Secretary
(principal financial officer)
/s/ Susan B. Blanton Controller (principal December 21, 1998
- ---------------------------- accounting officer)
Susan B. Blanton
/s/ Jeremy L. Curnock Cook Director December 21, 1998
- ----------------------------
Jeremy L. Curnock Cook
/s/ Martyn D. Greenacre Director December 21, 1998
- ----------------------------
Martyn D. Greenacre
/s/ Arthur J. Hale Director December 21, 1998
- ----------------------------
Arthur J. Hale, M.D.
/s/ Suzanne D. Jaffe Director December 21, 1998
- ----------------------------
Suzanne D. Jaffe
/s/ Michael Rosenblatt Director December 21, 1998
- ----------------------------
Michael Rosenblatt, M.D.
/s/ James R. Tobin Director December 21, 1998
- ----------------------------
James R. Tobin
<PAGE> 7
EXHIBIT INDEX
Exhibit
No. Description
--- -----------
4.1 Form of Common Stock Certificate (filed as Exhibit
4.2 to the Registration Statement on Form S-1,
Registration No. 33-46200, as amended, and
incorporated herein by reference)
4.2 Restated Certificate of Incorporation, as amended, of
the Registrant (filed as Exhibit 3.1) to Registrant's
Annual Report on Form 10-K for the period ended
September 30, 1995 (File No. 0-19910), and
incorporated herein by reference)
4.3 Restated By-Laws of the Registrant (filed as Exhibit
3.4 to Form S-1 Registration Statement (Registration
No. 33-46200), or amendments thereto, and incorporated
herein by reference)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., with respect to the legality of the
original issuance of securities being registered
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. (included in Exhibit 5)
24 Power of Attorney to file future amendments (included
in Part II of the Registration Statement)
99 Creative BioMolecules, Inc. Employee Stock Purchase
Plan, as amended on April 16, 1998 (filed as an
Exhibit to the Registrant's Preliminary Proxy
Statement for 1998 Annual Meeting of Stockholders
(File No. 0-19910))
<PAGE> 1
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 www.Mintz.com
Fax: 202/434-7400
December 21, 1998
Creative BioMolecules, Inc.
45 South Street
Hopkinton, Massachusetts 01748
Ladies and Gentlemen:
We have acted as counsel to Creative BioMolecules, 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, of a total of 250,000 shares (the
"Shares") of it's common stock, $.01 par value per share ("Common Stock"). This
Opinion is being rendered in connection with the filing of the Registration
Statement. All capitalized terms used herein and not otherwise defined shall
have the respective meanings given to them in the Registration Statement.
In connection with this opinion, we have examined the Company's
Restated Certificate and Restated By-Laws, both as currently in effect; such
other records of the corporate proceedings of the Company and certificates of
Company's officers as we 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
sold, will have been duly and validly issued, fully paid and non-assessable
shares of the Common Stock, free of preemptive rights.
Our opinion is limited to the General 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.
<PAGE> 2
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
December 21, 1998
Page 2
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, Glovsky and Popeo, P.C.
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Creative BioMolecules, Inc. on Form S-8 of our report dated March 5, 1998
appearing in the Annual Report on Form 10-K of Creative BioMolecules, Inc. for
the fiscal year ended December 31, 1997.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
December 21, 1998
