UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OSTEOTECH, INC.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
13-3357370
(I.R.S. Employer Identification No.)
51 James Way
Eatontown, New Jersey 07724
(Address of Principal Executive Offices) (Zip Code)
2000 Stock Plan
(Full title of the plan)
Michael J. Jeffries
Osteotech, Inc.
51 James Way
Eatontown, New Jersey 07724
(732) 542-2800
(Name, address and telephone number,
including area code, of agent for service)
copies to:
Kevin T. Collins, Esq.
Dorsey & Whitney LLP
250 Park Avenue
New York, New York 10177
(212) 415-9200
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================== ================= ====================== ======================= ================
Title of Each Class of Amount of Proposed Maximum Proposed Aggregate Amount of
Securities to be Registered Shares to be Offering Price Per Offering Price Registration Fee
Registered Share (1)
------------------------------ ----------------- ---------------------- ----------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock $0.01 par value 1,000,000 $10.00 $10,000,000 $2,640
per Share
============================== ================= ====================== ======================= ================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h) of the Securities Act of 1933, as
amended, based upon the average of the high and low sale prices for the
common stock par value $0.01 (the "Common Stock") as reported by the
National Association of Securities Dealers Automated Quotation System on
July 31, 2000.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of 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, 1999;
(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, 1999, including but not limited to the Quarterly Report on Form 10-Q for the
Quarter Ended March 31, 2000; and
(c) the description of the Company's Common Stock, $0.01 par value, as
contained in its Registration Statement on Form 8-A, declared effective by the
Commission on May 13, 1991, including any amendment or report filed for the
purpose of updating such information.
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 Directors and Officers.
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 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.
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All of the Company's officers and directors have entered into identical
indemnification agreements with the Company which provide for the
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 or she 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 or her in
connection with such action, suit or proceeding if he or she acted in good faith
and in a manner he or she 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 or her 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 or her in connection with the defense or
settlement of such action or suit if he or she 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.
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 claim,
issue or matter therein, he or she shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him or her 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 or her in
any such capacity or arising out of his or her status as such, whether or not
the corporation would have the power to indemnify him or her against such
liability under Section 145.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of Osteotech (previously
filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1991 and incorporated
herein by reference thereto)
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of Osteotech, Inc. (previously filed as an exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 and incorporated herein by reference thereto)
4.3 Stockholder Rights Agreement (previously filed as an exhibit to
the Company's Report on Form 8-A dated February 2, 1996 and
incorporated herein by reference thereto)
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (contained in opinion filed as
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page of the
Registration Statement)
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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 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; and
(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 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 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.
(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 1934 that is 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.
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(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
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.
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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 Eatontown, State of New Jersey, on August 3, 2000.
OSTEOTECH, INC.
(Registrant)
By: /s/ Michael J. Jeffries
----------------------------------------
Michael J. Jeffries, Executive Vice
President, Chief Financial Officer
and Secretary
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>
<TABLE>
<CAPTION>
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.
<S> <C> <C>
/s/ Donald D. Johnston Chairman of the August 3, 2000
--------------------------------------Board of Directors
Donald D. Johnston
/s/ Richard W. Bauer Chief Executive Officer August 3, 2000
--------------------------------------(Principal Executive Officer)
Richard W. Bauer and Director
/s/ Michael J. Jeffries Executive Vice President, August 3, 2000
-------------------------------------- Chief Financial Officer
Michael J. Jeffries and Secretary
(Principal Financial and
Accounting Officer) and
Director
/s/ Arthur A. Alfaro President, Chief Operating August 3, 2000
--------------------------------------Officer and Director
Arthur A. Alfaro
/s/ Stephen J. Sogin Director August 3, 2000
--------------------------------------
Stephen J. Sogin
Director
--------------------------------------
John Phillip Kostuik, M.D., F.R.C.S.
Director
--------------------------------------
Kenneth P. Fallon, III
</TABLE>
<PAGE>
Exhibit Index
-------------
4.1 Restated Certificate of Incorporation of Osteotech (previously
filed as an exhibit to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1991 and incorporated
herein by reference thereto)
4.2 Certificate of Amendment of Restated Certificate of Incorporation
of Osteotech, Inc. (previously filed as an exhibit to the
Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 and incorporated herein by reference thereto)
4.3 Stockholder Rights Agreement (previously filed as an exhibit to
the Company's Report on Form 8-A dated February 2, 1996 and
incorporated herein by reference thereto)
5.1 Opinion of Dorsey & Whitney LLP
23.1 Consent of Dorsey & Whitney LLP (contained in opinion filed as
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on the signature page of the
Registration Statement)
