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As filed with the Securities and Exchange Commission
on October 31, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOTRANSPLANT INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 04-3119555
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
CHARLESTOWN NAVY YARD
BUILDING 75, THIRD AVENUE
CHARLESTOWN, MASSACHUSETTS 02129
(Address of Principal Executive Offices) (Zip Code)
AMENDED 1991 STOCK OPTION PLAN
(Full title of the Plan)
ELLIOT LEBOWITZ, Ph.D.
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BIOTRANSPLANT INCORPORATED
CHARLESTOWN NAVY YARD
BUILDING 75, THIRD AVENUE
CHARLESTOWN, MASSACHUSETTS 02129
(Name and address of agent for service)
(617) 241-5200
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price offering registration
registered registered per share price fee
---------- ---------- --------- --------- ------------
Common 727,226 $6.125 (1) $4,454,259.25(1) $1,349.78
Stock, shares
$0.01 par
value per share
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(1) Estimated solely for the purpose of calculating the registration fee
and based upon the average of the high and low trading prices of the
Registrant's Common Stock, as reported on the Nasdaq National Market
on October 29, 1996, in accordance with Rules 457(a) and 457(h) of
the Securities Act of 1933.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by I of Form S-8 is included in
documents sent or given to participants in the Amended 1991 Stock
Option Plan of BioTransplant Incorporated, a Delaware corporation (the
"Registrant"), pursuant to Rule 428(b)(1) of the Securities Act of
1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
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The following documents, which are filed with the Securities
and Exchange Commission (the "Commission"), are incorporated in this
Registration Statement by reference:
(1) The Registrant's latest prospectus filed pursuant to Rule
424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Sections 13(a) or
15(d) of the Exchange Act since the end of the fiscal year covered
by the prospectus referred to in (1) above.
(3) The description of the Common Stock of the Registrant,
$0.01 par value per share (the "Common Stock"), contained in the
Registrant's Registration Statement on Form 8-A filed under the
Exchange Act, 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, as amended (the "Exchange Act"), prior to the filing of a
post-effective amendment which indicates that all shares of Common
Stock offered hereby have been sold or which deregisters all shares of
Common Stock then remaining unsold, shall be deemed to be incorporated
by reference herein and to be part hereof from the date of the filing
of such documents.
Item 4. Description of Securities
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Not applicable.
Item 5. Interests of Named Experts and Counsel
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Not applicable.
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Item 6. Indemnification of Directors and Officers
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Section 145 of the General Corporation Law of Delaware
provides that a corporation has the power to indemnify a director,
officer, employee or agent of the corporation and certain other persons
serving at the request of the corporation in related capacities against
amounts paid and expenses inccred in connection with an action or
proceeding to which such person is or is threatened to be made a party
by reason of such position, if such person shall have acted in good
faith and in a manner reasonably believed to be in or not opposed to
the best interests of the corporation, and, in any criminal proceeding,
if such person had no reasonable cause to believe such conduct was
unlawful; provided that, in the case of actions brought by or in the
right of the corporation, no indemnification shall be made with respect
to any matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the
adjudicating court determines that such indemnification is proper under
the circumstances.
Article X of the Registrant's Certificate of Incorporation
provides that a director or officer of the Registrant (a) shall be
indemnified by the Registrant against all expenses (including
attorney's fees), judgments, fines and amounts paid in settlement
reasonably incurred in connectin with any litigation or other legal
proceeding (other than an action by or in the right of the Registrant)
brought against such director or officer by virtue of a position as a
director or officer of the Registrant if such director or officer acted
in good faith and in a manner reasonably believed by such director to
be in or not opposed to the best interests of the Registrant, and, with
respect to any criminal action or proceeding, such director had no
reasonble cause to believe such conduct was unlawful and (b) shall be
indemnified by the Registrant against expenses (including attorneys'
fees) and amounts paid in settlement reasonably incurred in connection
with any action by or in the right of the Registrant by virtue of a
position as a director or officer of the Registratnt if such officer or
director acted in good faith and in a manner reasonably believed to be
in or not opposed to the best interests of the Registrant, except that
no indemnification shall be made with respect to any such matter as to
which such director or officer shall have been adjudged to be liable to
the Registrant, unless and only to the extent that a court determines
that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court deems proper.
Nothwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, such person
shall be indemnified against all expenses (including attorney's fees)
reasonably incurred in connection therewith.
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Expenses incurred in defending a civil or criminal action, suit or
proceeding shall be advanced by the Registrant to a director or
officer, at such person's request, upon receipt of an undertaking by
the director or officer to repay such amount if it is ultimately
determined that such pereson is not entitled to indemnification.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for
information has not been met. In the event of a determination by the
Registrant that the director or officer did not meet applicable
standard of conduct required for indemnification, or if the Registrant
fails to make an indemnification payment within 60 days after such
payment is claimed by such person, such person is permitted to petition
a court to make an independent determination as to whether such person
is entitled to indemnification. As a condition precedent to the right
of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant
has the right to participate in such action or assume the defense
thereof.
Article X of the Registrant's Certificate of Incorporation
further provides that the indemnification provided therein is not
exclusive, and provides that in the event that the Delaware General
Corporation Law is amended to expand the indemnification permitted to
directors or officers, the Registrant must indemnify those persons to
the fullest extent permitted by such law as so amended.
Article IX of the Registrant's Certificate of Incorporation
provides that, except to the extent that the General Corporation Law of
Delaware prohibits the elimination or limitation of liability of
directors for breaches of fiduciary duty, no director of the Registrant
shall be personally liable to the Registrant or its stockholders for
monetary damages for any breach of fiduciary duty as a director.
The Registrant has purchased a general liability insurance
policy which covers certain liabilities of directors and officers of
the Registrant arising out of claims based on acts or omissions in
their capacity as directors or officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The Exhibit Index immediately preceding the exhibits is
incorporated herein by reference.
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Item 9. Undertakings
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1. The Registrant hereby undertakes:
(a) 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, represent a
fundamental change in the information set forth in the
Registration Statement; and
(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 (i) and (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 Exchange
Act that are incorporated by reference in the Registration
Statement.
(b) 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.
(c) 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.
2. The 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
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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.
3. 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
Securities and Exchange 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Charlestown, Commonwealth of
Massachusetts, this 30th day of October, 1996.
BioTransplant Incorporated
By: /s/ Elliot Lebowitz
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Elliot Lebowitz
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of BioTransplant
Incorporated, hereby severally constitute and appoint Elliot Lebowitz,
Richard V. Capasso and Steven D. Singer, and each of them singly, our
true and lawful attorneys with full power to them, and each of them
singly, to sign for us and in our names, in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith, and any
and all subsequent amendments to said Registration Statement, and
generally to do all such things in our names and on our behalf and in
our capacities as officers and directors to enable BioTransplant
Incorporated to comply with the provisions of the Securities Act of
1933, as amended, and all requirements of the Securities and Exchange
Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said Registration
Statement and any and all amendments thereto.
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Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed below by the following persons
in the capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
/s/ Elliot Lebowitz President, Chief October 30, 1996
--------------------------- Executive Officer
Elliot Lebowitz and Director
(Principal Executive
Officer)
/s/ Richard V. Capasso Director of October 30, 1996
--------------------------- Finance (Principal
Richard V. Capasso Financial and
Accounting Officer)
/s/ William W. Crouse Director October 30, 1996
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William W. Crouse
/s/ James C. Foster Director October 30, 1996
---------------------------
James C. Foster
/s/ Daniel O. Hauser Director October 30, 1996
---------------------------
Daniel O. Hauser
Director October , 1996
---------------------------
Robert A. Vukovich
/s/ Daniel P. Kearney Director October 30, 1996
---------------------------
Daniel P. Kearney
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Exhibit Index
Exhibit
Number Description Page
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4.1 (1) Restated Certificate of Incorporation,
as amended to date. --
4.2 (1) By-laws, as amended to date --
4.3 (1) Specimen Certificate of Common Stock, --
$0.01 par value, of the Registrant
5 Opinion of Hale and Dorr
23.1 Consent of Hale and Dorr --
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature --
page of this Registration Statement)
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(1) Incorporated herein by reference to the Registrant's Registration Statement
on Form S-1 (File No. 333-2144).
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October 31, 1996
BioTransplant Incorporated
Charlestown Navy Yard
Building 75, Third Avenue
Charlestown, MA 02129
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on
Form S-8 (the "Registration Statement") to be filed with the Securities
and Exchange Commission relating to shares of Common Stock, $.01 par
value per share (the "Shares"), of BioTransplant Incorporated, a
Delaware corporation (the "Company"), issuable under the Company's
Amended 1991 Stock Option Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and
Amended and Restated By-Laws of the Company, each as amended to date,
the Registration Statement and originals, or copies certified to our
satisfaction, of all pertinent records of the meetings of the directors
and stockholders of the Company and such other documents relating to
the Company as we have deemed material for the purposes of this
opinion.
In examination of the foregoing documents, we have assumed the
genuineness of all signatures and 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 latter documents.
Based on the foregoing, we are of the opinion that the Shares
covered by the Registration Statement have been duly authorized for
issuance under the plan and the Shares, when issued against payment
therefor in accordance with the terms of the Plan, will be legally
issued, fully paid and non-assessable.
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We hereby consent to the filing of this opinion with the
Securities and Exchange Commission as an Exhibit to the Registration
Statement.
Very truly yours,
/s/ Hale and Dorr
HALE AND DORR
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
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As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement of BioTransplant Incorporated on
Form S-8 of our report dated February 5, 1996 (except with respect to the
matters discussed in Notes 6(a) and 14, as to which the dates are May 6, 1996
and February 13, 1996, respectively) included in the Registration Statement on
Form S-1 (File No. 333-2144) of BioTransplant Incorporated and to all references
to our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston Massachusetts
October 30, 1996
