<PAGE> 1
As filed with the Securities and Exchange Commission on August 4, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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
(Address of Principal Executive Offices)
CREATIVE BIOMOLECULES, INC. 1992 NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK
OPTION PLAN
(Full Title of the Plan)
MICHAEL M. TARNOW
PRESIDENT AND CHIEF EXECUTIVE OFFICER
CREATIVE BIOMOLECULES, INC.
45 SOUTH STREET
HOPKINTON, MA 01748
(Name and address of agent for service)
(508) 782-1100
(Telephone number, including area code, of agent for service)
-------------------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===================================================================================================================
Proposed Proposed
Amount maximum maximum Amount of
Title 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, 40,000 $4.157 $ 166,280.00 $ 46.22
par value $.01 per share........... 260,000 $3.9375 $1,023,750.00 $284.60
------- -------
300,000 shares $330.82
===================================================================================================================
</TABLE>
(1) The number of shares of common stock, $.01 par value (the "Common Stock"),
stated above consists of (i) the aggregate number of shares which may be issued
upon the exercise of options which have previously been granted under the
Creative BioMolecules, Inc. 1992 Non-Employee Director Non-Qualified Stock
Option Plan (the "Plan") and (ii) the shares of Common Stock which may be issued
upon the exercise of options which may
<PAGE> 2
hereafter be granted and pursuant to grants of stock which may hereafter be made
under 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
"Securities 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 Securities
Act 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 (a) shares
of Common Stock for which options have not yet been granted and the option price
of which is therefore unknown, and (b) shares of Common Stock for which grants
of stock have not yet been made, 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 (August 2, 1999) within 5 business days
prior to filing this Registration Statement.
<PAGE> 3
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. This Registration Statement on Form S-8 hereby registers 300,000
additional shares of Common Stock pursuant to the Plan. Registration Statements
on Form S-8 (File No. 33-56706 and File No. 333-36171), registering an aggregate
of 100,000 shares and 100,000 shares of Common Stock, respectively, under the
Plan were filed with the Commission on January 4, 1993 and September 23, 1997,
respectively.
<PAGE> 4
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company 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, 1998 filed with the Commission on March 30, 1999.
2. The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1999 filed with the Commission on May 14, 1999.
3. The Company's Current Reports on Form 8-K filed with the Commission on
May 14, 1999.
4. The description of the Common Stock included in the Company's
registration statement on Form 8-A under the Securities Exchange Act of 1934, as
amended (the "Exchange 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 Exchange
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. Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., certain 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 of the Company.
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> 5
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 the
Registration Statement on Form S-1, Registration No. 33-46200, as
amended, and incorporated herein by reference)
(4.4) Creative BioMolecules, Inc. 1992 Non-Employee Director Non-Qualified
Stock Option Plan, as amended on June 8, 1999.
(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)
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; (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.
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) (Section 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
<PAGE> 6
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this 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) 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 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
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 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.
<PAGE> 7
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 August 4, 1999.
CREATIVE BIOMOLECULES, INC.
By: /s/ Cheryl K. Lawton
-----------------------------------
Cheryl K. Lawton
General Counsel and Vice President,
Administration
Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Michael M. Tarnow and Cheryl K. Lawton, 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.
<TABLE>
<CAPTION>
Signatures Title Date
- ---------- ----- ----
<S> <C> <C>
/s/ Brian H. Dovey Chairman of the Board and Director August 4, 1999
- ----------------------------
Brian H. Dovey
/s/ Michael M. Tarnow President, Chief Executive Officer and Director August 4, 1999
- ---------------------------- (principal executive officer)
Michael M. Tarnow
/s/ Charles Cohen Chief Scientific Officer and Director August 4, 1999
- ----------------------------
Charles Cohen, Ph.D.
/s/ Cheryl K. Lawton General Counsel and Vice President, Administration August 4, 1999
- ---------------------------- Secretary
Cheryl K. Lawton
/s/ Charles Carelli Director of Accounting (principal accounting officer) August 4, 1999
- ----------------------------
Charles Carelli
/s/ Jeremy L. Curnock Cook Director August 4, 1999
- ----------------------------
Jeremy L. Curnock Cook
/s/ Martyn D. Greenacre Director August 4, 1999
- ----------------------------
Martyn D. Greenacre
Director
- ----------------------------
Arthur J. Hale, M.D.
/s/ Suzanne D. Jaffe Director August 4, 1999
- ----------------------------
Suzanne D. Jaffe
/s/ Michael Rosenblatt Director August 4, 1999
- ----------------------------
Michael Rosenblatt, M.D.
/s/ James R. Tobin Director August 4, 1999
- ----------------------------
James R. Tobin
</TABLE>
<PAGE> 8
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 the
Registration Statement on Form S-1, Registration No. 33-46200, as
amended, and incorporated herein by reference)
(4.4) Creative BioMolecules, Inc. 1992 Non-Employee Director Non-Qualified
Stock Option Plan, as amended on June 8, 1999.
(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)
<PAGE> 1
Exhibit 4.4
CREATIVE BIOMOLECULES, INC.
1992 NON-EMPLOYEE DIRECTOR NON-QUALIFIED STOCK OPTION PLAN
(Amended as of June 8, 1999)
1. PURPOSE. The 1992 Non-Employee Director Non-Qualified Stock Option
plan (the "Plan") is intended to promote the interests of Creative BioMolecules,
Inc. (the "Corporation") by providing an inducement to obtain and retain the
services of qualified persons who are not employees of the Corporation as
members of the Board of Directors of the Corporation and to demonstrate the
Corporation's appreciation for their service on the Board of Directors.
2. RIGHTS TO BE GRANTED. Under the Plan, options shall be granted that
give an optionee the right for a specified time period to purchase a specified
number of shares of Common Stock, par value $.01 per share, of the Corporation
(the "Common Stock"). The option price shall be determined in each instance in
accordance with the terms of this Plan.
3. AVAILABLE SHARES. The maximum aggregate number of shares of Common
Stock reserved and available for distribution under the plan shall be five
hundred thousand (500,000) shares, subject to adjustment in accordance with
Section 13 hereof. Such shares may consist, in whole or in part, of authorized
and unissued shares or treasury shares. If any options granted under this Plan
are surrendered before exercise or lapse without exercise, in whole or in part,
the shares reserved therefor shall revert to the option pool and continue to be
available for grant under the Plan.
4. ADMINISTRATION. The Plan shall be administered by the Board of
Directors of the Corporation. The Board of Directors shall, subject to the
provisions of the Plan and Section 17 hereof in particular, have the power to
construe the Plan, to determine all questions thereunder, and to adopt and amend
such rules and regulations for the administration of the Plan as it may deem
desirable. All decisions made by the Board of Directors pursuant to the
provisions of the Plan shall be made in the Board of Directors' sole discretion
and shall be binding on all persons, including the Corporation and Plan
participants. The Plan is intended to comply with Rule 16b-3 and its successors
promulgated under the Securities Exchange Act of 1934 (the "Exchange Act") and
as a "formula award" plan described in Rule 16b-3(c)(2)(ii) with respect to
participants who are subject to Section 16 of the Exchange Act, and any
provision in this Plan to the contrary shall be deemed null and void to the
extent permissible by law and deemed appropriate by the Board of Directors.
5. OPTION AGREEMENT. Each option granted under the provisions of this
Plan shall be evidenced by an Option Agreement, in such form as may be approved
by the Board of Directors, which Option Agreement shall be duly executed and
delivered on behalf of the Corporation and by the optionee to whom such option
is granted. The Option Agreement shall contain such terms, provisions, and
conditions not inconsistent with the Plan as may be determined by the Board of
Directors; provided, however, if and in any event the Corporation registers any
class of any equity pursuant to Section 12 of the Exchange Act, from the
effective date of such registration (the "Effective Date") until six months
after the termination of such registration (the "Termination Date"), the shares
of Common Stock issued pursuant to an exercise of an option granted between the
Effective Date and the Termination Date, inclusive, shall not be sold, pledged,
assigned, hypothecated, transferred or disposed of for six (6) months after the
date of grant of the option. No option agreement may provide for restrictions
which would cause the Plan to not qualify as a "formula plan" meeting the
requirements of Rule 16b-3(c)(2)(ii).
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<PAGE> 2
6. ELIGIBILITY AND LIMITATIONS. Options may be granted pursuant to the
Plan only to non-employee members of the Board of Directors of the Corporation
who are directors on the Commencement Date or are elected as directors, by the
stockholders of the Corporation or the Board of Directors, at any date after the
Commencement Date. As used herein "Commencement Date: shall mean the date which
is seven (7) days after the date on which the Corporation issues and sells
shares of Common Stock pursuant to a firmly underwritten public offering.
7. OPTION PRICE. The purchase price of the Common Stock covered by an
option granted pursuant to the Plan shall be 100% of the fair market value of
such Common Stock on the day the option is granted. The option price will be
subject to adjustment in accordance with the provisions of Section 13 hereof.
For purposes of the plan, if at any time an option is granted under the plan,
the Corporation's Common Stock is publicly traded, "fair market value" shall be
determined on the date such option is granted (or, if prices or quotes discussed
in this sentence are unavailable on the date of grant, on the last business day
for which such prices or quotes are available prior to the date such option is
granted) and shall mean (i) the average (on that date) of the high and low
prices of the Common Stock on the principal national securities exchange on
which the Common Stock is traded, if the Common Stock is then traded on a
national securities exchange, or on the Nasdaq National Market System, if the
Common Stock is not then traded on a national securities exchange; or (ii) the
closing bid price (or average of bid prices) last quoted (on that day) by an
established quotation service for over-the-counter securities, if the Common
stock is not reported on the Nasdaq National Market System. If the Common Stock
is neither listed on a national securities exchange nor reported on the Nasdaq
National Market System nor traded on the over-the-counter market, "fair market
value" shall mean such value as the Board, in good faith, shall determine.
8. AUTOMATIC GRANT OF OPTIONS. Each person who is a director eligible
to participate in the Plan on the Commencement Date, shall be granted as of such
date, an option to purchase ten thousand (10,000) shares of Common Stock at the
exercise price referenced in Section 7, which number of shares shall be subject
to adjustment in accordance with Section 13 hereof. Each person who is elected
as a director of the Corporation by the stockholders or the Board of Directors
after the Commencement Date through and including the 1996 annual meeting of
stockholders of the Corporation and who has not previously been a director of
the Corporation and is not an employee of the Corporation shall be granted, as
of the date such person shall become a director, an option to purchase ten
thousand (10,000) shares of Common Stock at the exercise price referenced in
Section 7, which number of shares shall be subject to adjustment in accordance
with Section 13 hereof. Each person who served as a director immediately prior
to and continues to serve as a director following the 1996 annual meeting of
stockholders and is not an employee of the Corporation shall be granted, as of
the date of the 1996 annual meeting of stockholders of the Corporation, an
option to purchase ten thousand (10,000) shares of Common Stock at the exercise
price referenced in Section 7, which number of shares shall be subject to
adjustment in accordance with Section 13 hereof. Each person who is elected as a
director of the Corporation by the stockholders or the Board of Directors after
the 1996 annual meeting of stockholders of the Corporation and who has not
previously been a director of the Corporation and is not an employee of the
Corporation shall be granted, as of the date such person shall become a
director, an option to purchase twenty thousand (20,000) shares of Common Stock
at the exercise price referenced in Section 7, which number of shares shall be
subject to adjustment in accordance with Section 13 hereof. Following the 1997
annual meeting of stockholders of the Corporation and following each annual
meeting of the stockholders of the Corporation thereafter, each person who
served as a director immediately prior to and continues to serve as a director
following the annual meeting of stockholders and is not an employee of the
Corporation shall be granted, as of the date such annual meeting of
stockholders, an option to purchase five thousand (5,000) shares of Common Stock
at the exercise price referenced in Section 7, which number of shares shall be
subject to adjustment in accordance with Section 13 hereof. Options acquired
through any grant shall become exercisable as to twenty-five percent (25%) of
the shares subject thereto upon completion of a full twelve (12) months of
service as a member of the Board of Directors after the grant and thereafter
shall become exercisable, as to an additional twenty-five percent (25%) of the
shares
-2-
<PAGE> 3
subject thereto, upon completion of each additional full twelve (12) months of
service as a member of the Board of Directors, which rights shall be cumulative,
but in no event shall an option be exercisable for more than the number of
shares for which the option was granted, subject to adjustment in accordance
with Section 13 hereof.
In the event of a "Change of Control" of the Corporation (as defined
below), the holder of the option shall be entitled to exercise the option, as
the instant prior to the consummation of such Change of Control, for all of the
then outstanding but unvested options, and such shares shall be in addition to
previously vested options which such holder is entitled to exercise. A "Change
of Control" shall be deemed to have occurred if there is a consummation of any
of the following:
(i) the sale of all or substantially all of the Corporation's
assets;
(ii) the sale to a third party (which shall include any
affiliates of a person acting in concert with such third
party) of beneficial ownership of more than fifty percent
(50%) of all of the outstanding capital stock of the
Corporation in a single or integrated transaction (treating
all securities, which at such time are exercisable,
convertible or exchangeable for Common Stock of the
Corporation, as so exercised, converted or exchanged); or
(iii) the sale of the Corporation through a consolidation or
merger (other than a merger the Corporation with one or more
of its wholly-owned subsidiaries) in which consolidation or
merger of the Corporation is not the surviving corporation
or the acquisition is as a result of a reverse triangular
merger, provided in either case the stockholders of the
Corporation immediately before such consolidation or merger
own less than fifty percent (50%) of the outstanding capital
stock of the surviving corporation immediately after such
consolidation or merger; or
(iv) the majority of the Board of Directors is changed as a
result of a proxy contest.
9. PERIOD OF OPTION. The options granted hereunder shall expire on a
date which is ten (10) years after the date of grant, and the plan shall
terminate when all options granted hereunder have terminated and no more options
may be granted hereunder.
10. EXERCISE OF OPTION. Subject to the terms and conditions of the Plan
and the Option Agreement relating thereto, an option granted hereunder shall be
exercisable in whole or in part by giving written notice to the Corporation by
mail or in person addressed to the Secretary of the Corporation stating the
number of shares with respect to which the option is being exercised,
accompanied by payment in full for such shares in cash or by check. Upon
notification from the Corporation, the Transfer Agent shall, on behalf of the
Corporation, prepare a certificate or certificates representing such shares
acquired pursuant to exercise of the option, shall register the optionee as the
owner of such shares on the books of the Corporation and shall cause the fully
executed certificate(s) representing such shares to be delivered to the optionee
as soon as practicable after payment of the option price in full for the shares
being purchased. The holder of an option shall not have any rights of a
shareholder with respect to the shares covered by the option, except to the
extent that one or more certificates for such shares shall be delivered to him
or his agent upon the due exercise of the option.
11. NON-TRANSFERABILITY OF OPTIONS. (a) The certificates representing
the shares of Common Stock issuable upon exercise of the options shall carry
such appropriate legend, and such written instructions shall be given to the
Corporation's Transfer Agent, as may be deemed necessary or advisable
-3-
<PAGE> 4
by counsel to the Corporation in order to comply with the requirements of the
Securities Act of 1933, as amended, or any state securities laws.
(b) Any option granted pursuant to the Plan shall not be assignable or
transferable other than by will or the laws of descent and distribution, and
shall be exercisable during the optionee's lifetime only by him.
12. TERMINATION OF OPTION RIGHTS. (a) In the event an optionee ceases
to be a member of the Board of Directors of the Corporation for any reason other
than death or disability, any then unexercised options granted to such optionee
may be exercised by the optionee within a period of ninety (90) days after the
date the optionee so ceases to be a member of the Board of Directors, but in no
event later than the expiration date of the option.
(b) In the event that an optionee ceases to be a member of the Board of
Directors of the Corporation by reason of his disability or death, any option
granted hereunder to such optionee may be exercised by the optionee (or by the
optionee's personal representative, heir or legatee, in the event of death) to
the extent of the number of shares with respect to which it was exercisable on
the date of death or termination by reason of disability, within a period of one
hundred eighty (180) days after the date the optionee so ceases to be a member
of the Board of Directors, but in no event later than the expiration date of the
option. For purposes of this Plan, the term "disability" shall mean "permanent
and total disability" as defined in Section 22(e)(3) of the Internal Revenue
Code of 1986 or successor statute.
13. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION AND OTHER MATTERS. In
the event that the outstanding shares of the Common Stock are changed into or
exchanged for a different number or kind of shares or other securities of the
corporation or of another corporation by reason of any reorganization, merger,
consolidation, recapitalization or reclassification, or in the event of a stock
split, combination of shares or dividends payable in capital stock, automatic
adjustment shall be made in the number and kind of shares as to which
outstanding options or portions thereof then unexercised shall be exercisable
and in the available shares set forth in Section 3 hereof, to the end that the
proportionate interest of the option holder shall be maintained as before the
occurrence of such event. Such adjustment in outstanding options shall be made
without change in the total price applicable to the unexercised portion of such
options and with a corresponding adjustment in the option price per share.
If an option hereunder shall be assumed, or a new option substituted
therefor, as a result of sale of the Corporation, whether by a corporate merger,
consolidation or sale of property or stock, then membership on the Board of
Directors of such assuming or substituting corporation or by a parent
corporation or a subsidiary thereof shall be considered for purposes of an
option to be membership on the Board of Directors of the Corporation.
14. RESTRICTIONS ON ISSUANCE OF SHARES. Notwithstanding the provisions
of Sections 8 and 10 hereof, the Corporation shall have no obligation to deliver
any certificate or certificates upon exercise of an option until one of the
following conditions shall be satisfied:
(i) The shares with respect to which the option has been
exercised are at the time of the issue of such shares effectively
registered under applicable Federal and State securities laws as now in
effect or hereafter amended; or
(ii) Counsel for the Corporation shall have given an opinion
that such shares are exempt from registration under Federal and State
securities laws as now in effect or hereafter amended;
-4-
<PAGE> 5
and until the Corporation has complied with all applicable laws and regulations,
including, without limitation, all regulations required by any stock exchange
upon which the outstanding Common Stock is then listed.
The Corporation shall use its best efforts to bring about compliance
with the above conditions within a reasonable time, except that the Corporation
shall be under no obligation to cause a registration statement or a
post-effective amendment to any registration statement to be prepared at its
expense solely for the purpose of covering the issue of shares with respect to
which any option may be exercised.
15. REPRESENTATIONS AND WARRANTIES OF OPTIONEE. The Corporation shall
require the optionee to deliver written warranties and representations upon
exercise of the option that are necessary to comply with Federal and State
securities laws, including, if necessary, those to the effect that a purchase of
shares under the option is made for investment and not with a view to their
distribution (as such term is used in the Securities Act of 1933, as amended).
16. APPROVAL OF STOCKHOLDERS. The effectiveness of this Plan and of the
grant of all options hereunder is in all respects subject to approval of the
Plan by the Corporation's stockholders.
17. TERMINATION AND AMENDMENT OF PLAN. The Board of Directors of the
Corporation may at any time terminate the Plan or make such modifications or
amendments thereto as it deem advisable; provided, however, that termination or
any modification or amendment of the Plan shall not, without consent of a
participant, affect his rights under an option previously granted to him. In no
event may any provision of the Plan with respect to the timing, price, or amount
of awards be amended more than once every six months, other than to comport with
changes in the Internal Revenue Code or the rules thereunder. In no event will
any amendment be permitted if it causes the Plan to cease to be a "formula
award" plan, as described in Rule 16b-3(c)(2)(ii). If the scope of any amendment
is such as to require shareholder approval in order to comply with Rule 16b-3,
then such amendment shall not be effective unless and until such shareholder
approval is obtained.
18. GOVERNING LAW; CONSTRUCTION. The validity and construction of the
Plan and the instruments evidencing the options shall be governed by the laws of
the State of Delaware. In construing this Plan, the singular shall include the
plural and the masculine gender shall include the feminine and neuter, unless
the context otherwise requires.
-5-
<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
August 4, 1999
Creative BioMolecules, Inc.
45 South Street
Hopkinton, Massachusetts 01748
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 the
issuance under the Securities Act of 1933, as amended, of a total of 300,000
shares (the "Shares") of its common stock, $.01 par value per share (the "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 of Incorporation, and Restated 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
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 Corporation 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.
August 4, 1999
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 AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Creative BioMolecules, Inc. on Form S-8 of our report dated February 26, 1999,
appearing in the Annual Report on Form 10-K of Creative BioMoleclues, Inc. for
the year ended December 31, 1998.
/s/ DELOITTE & TOUCHE LLP
Boston, Massachusetts
August 4, 1999
