As filed with the Securities and Exchange Commission
on September 22, 1998
Registration No. _____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
REGISTRATION STATEMENT
ON
FORM S-8
UNDER
THE SECURITIES ACT OF 1933
OSTEOTECH, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3357370
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
51 James Way
Eatontown, New Jersey 07724
(Address of Principal Executive Offices) (Zip Code)
1991 Stock Option Plan, as amended
(Full title of the plan)
Michael J. Jeffries
Osteotech, Inc.
51 James Way
Eatontown, New Jersey 07724
(732) 542-2800
(Name and address of agent for service of process)
copies to:
Kevin T. Collins, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
(212) 415-9200
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
====================================================================================================================================
Title of Each Class of Amount of Proposed Maximum
Securities to be Shares to be Offering Price Per Proposed Aggregate Amount of
Registered Registered Share (1) Offering Price (2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock $.01 par 818,624 $25.25 20,670,256 $6,097.73
value per Share......
====================================================================================================================================
</TABLE>
(1) This is an average price determined by dividing the proposed Aggregate
Offering Price by the Amount of Shares to be Registered.
(2) Estimated solely for the purpose of calculating the registration fee
in accordance with Rule 457(c) of the Securities Act of 1933, as
amended (the "Act") based upon the average of the bid and ask price
for the Common Stock par value $.01 (the "Common Stock") as reported
by the National Association of Securities Dealers Automated Quotation
System on September 18, 1998.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The Registrant hereby incorporates by reference the following documents
previously filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) all other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December
31, 1997, including but not limited to the Quarterly Reports on Form 10-Q for
the Quarters Ended March 31, 1998 and June 30, 1998; and
(c) the description of the Company's Common Stock, $.01 par value, as
contained in its Registration Statement on Form 8-A, declared effective by the
Commission on May 13, 1991.
All documents subsequently filed by the Registrant 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
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Officers and Directors.
Article 10 of the Company's Certificate of Incorporation provides that no
director of the Company shall be liable to the Company or its stockholders for
monetary damages for a breach of fiduciary duty as a director; provided,
however, that nothing contained in such article shall eliminate the liability of
a director (1) for
II-2
<PAGE>
any breach of the director's duty of loyalty to the Company or its stockholders,
(2) for acts or omissions that are not in good faith or involve intentional
misconduct or a knowing violation of the law, (3) under Section 174 of the
General Corporation Law of the State of Delaware ("DGCL") or (4) for any
transaction from which the director derived an improper personal benefit.
The Certificate of Incorporation and By-Laws of the Company provide for
indemnification of the Company's officers and directors to the fullest extent
permitted by the DGCL.
Additionally, the Company maintains a policy of liability insurance to
insure its officers and directors against losses resulting from wrongful acts
committed by them in their capacities as officers and directors of the Company,
including liabilities arising under applicable securities laws.
Section 145 of the DGCL empowers a corporation to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful.
Section 145 also empowers a corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person acted in any of the
capacities set forth above, against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted under similar standards, except
that no indemnification may be made in respect of any claim, issue or matter as
to which such person shall have been adjudged to be liable to the corporation
unless, and only to the extent that, the Delaware Court of Chancery or the court
in which such action was brought shall determine that despite the adjudication
of liability such person is fairly and reasonably entitled to indemnity, for
such expenses which the Delaware Court of Chancery or such other court shall
deem proper.
II-3
<PAGE>
Section 145 further provides that to the extent a director, officer,
employee or agent of a corporation has been successful in the defense of any
action, suit or proceeding referred to above or in the defense of any claims,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
and that the corporation is empowered to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
corporation against any liability asserted against him in any such capacity or
arising out of his status as such, whether or not the corporation would have the
power to indemnify him against such liability under Section 145.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act of 1933, as amended (the "Securities Act") and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of 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.
II-4
<PAGE>
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following are filed as exhibits or incorporated by reference into this
Registration Statement:
Exhibit No. or
Exhibit Incorporation
Number Description by Reference
5.1 Opinion of Dorsey & Whitney LLP E-1
23.1 Consent of Dorsey & Whitney LLP
(contained in opinion filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP E-2
24.1 Power of Attorney *
* Powers of attorney are contained in signatures.
II-5
<PAGE>
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 the 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 this 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 this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the Registration Statement is on 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 Securities
Exchange Act of 1934 that are incorporated by reference in the
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 offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
II-6
<PAGE>
(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) 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 that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) That, 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 of 1933 and will be governed by the final adjudication of such
issue.
II-7
<PAGE>
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 of 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 Eatontown, State of New Jersey, on September 22,
1998.
OSTEOTECH, INC.
(Registrant)
By: /S/RICHARD BAUER
Richard W. Bauer, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints Richard W. Bauer and Michael J. Jeffries
as true and lawful attorneys-in-fact and agents, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement and to file the same, with all exhibits thereto, and all
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 and 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, each acting alone, or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
<PAGE>
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>
Name Title Date
---- ----- ----
<S> <C> <C>
/S/DONALD D. JOHNSTON Chairman of the
- --------------------------- Board of Director
Donald D. Johnston September 22, 1998
------------------------
/S/RICHARD W. BAUER President and Chief September 22, 1998
- --------------------------- Executive Officer, ------------------------
Richard W. Bauer (Principal Executive
Officer) and Director
/S/MICHAEL J. JEFFRIES Executive Vice President, September 22, 1998
- --------------------------- Chief Financial Officer ------------------------
Michael J. Jeffries and Chief Operating Officer
(Principal Accounting
Officer) and Director
/S/STEPHEN J. SOGIN Director September 22, 1998
- ---------------------------
Stephen J. Sogin ------------------------
/S/JOHN PHILLIP KOSTUIK Director September 22, 1998
- ---------------------------
John Phillip Kostuik, ------------------------
M.D., F.R.C.S.
/S/KENNETH P. FALLON, III Director September 22, 1998
- --------------------------- ------------------------
Kenneth P. Fallon, III
</TABLE>
<PAGE>
Registration No. 333-____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EXHIBITS FILED WITH
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OSTEOTECH, INC.
Exhibit 5.1
September 22, 1998
Osteotech, Inc.
51 James Way
Eatontown, NJ 07724
Re: Osteotech, Inc.
Ladies and Gentlemen:
You have requested our opinion with respect to the registration by
Osteotech, Inc., a Delaware corporation (the "Company") pursuant to a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended, of an aggregate of 818,624 shares of the
Company's common stock, $.01 par value per share (the "Common Stock" or "Common
Shares"), issuable upon exercise of options (the "Options") to purchase Common
Stock which have been or may be granted pursuant to written option agreements
between the Company and officers and directors of the Company under the
Company's 1991 Stock Option Plan, as amended (the "Plan").
In so acting, we have examined original or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed relevant and necessary to
form a basis for the opinions hereinafter expressed. In conducting such
examination, we have assumed (i) that all signatures are genuine, (ii) that all
documents and instruments submitted to us as copies conform with the originals
and (iii) the due execution and delivery of all documents where due execution
and delivery are a prerequisite to the effectiveness thereof. As to any facts
material to this opinion, we have relied upon statements and representations of
officers and other representatives of the Company and certificates of public
officials and have not independently verified such facts.
Based upon the foregoing, it is our opinion that the Common Shares issuable
upon exercise of Options issued or issuable pursuant to the Plan will be validly
issued, fully paid and non-assessable when issued in accordance with the Plan.
/s/ Dorsey & Whitney LLP
Dorsey & Whitney LLP
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Osteotech, Inc. (the "Company") on Form S-8 pertaining to the 1991 Stock Option
Plan, as amended of our report dated February 27, 1998, on our audits of the
consolidated financial statements of the Company and its subsidiaries as of
December 31, 1997 and 1996, and for the years ended December 31, 1997, 1996, and
1995, which report is included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1997.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
New York, New York
September 21, 1998
