<PAGE> 1
As filed with the Securities and Exchange Commission
on June 12, 1997
Registration No. 333-
================================================================================
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)
1997 STOCK INCENTIVE 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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<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
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
- ---------- ---------- --------- --------- ------------
<S> <C> <C> <C> <C>
Common 750,000 $6.75(1) $5,062,500.00(1) 1,535.00
Stock, shares
$0.01 par
value per share
- --------------------------------------------------------------------------------
</TABLE>
(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
June 6, 1997, in accordance with Rules 457(c) and 457(h) of the Securities
Act of 1933, as amended.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I of Form S-8 is included in
documents sent or given to participants in the 1997 Stock Incentive 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
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 annual report filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or the 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 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
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
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Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
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 incurred 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 connection 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 reasonable 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 Registrant 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 person is not entitled to
indemnification.
Indemnification is required to be made unless the Registrant
determines that the applicable standard of conduct required for indemnification
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
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 10th
day of June, 1997.
BioTransplant Incorporated
By: /s/ Elliot Lebowitz
-----------------------------------
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 June 10, 1997
- ----------------------------- Executive Officer
Elliot Lebowitz and Director
(Principal
Executive
Officer)
/s/ Richard V. Capasso Vice President, June 10, 1997
- ----------------------------- Finance (Principal
Richard V. Capasso Financial and
Accounting Officer)
/s/ Donald R. Conklin Director June 10, 1997
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Donald R. Conklin
/s/ William W. Crouse Director June 10, 1997
- -----------------------------
William W. Crouse
/s/ James C. Foster Director June 10, 1997
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James C. Foster
/s/ Daniel O. Hauser Director June 10, 1997
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Daniel O. Hauser
/s/ Robert A. Vukovich Director June 10, 1997
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Robert A. Vukovich
Director June , 1997
- -----------------------------
Daniel P. Kearney
-8-
<PAGE> 9
Exhibit Index
Exhibit
Number Description
- ------- -----------
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 LLP
23.1 Consent of Hale and Dorr LLP
(included in Exhibit 5)
23.2 Consent of Arthur Andersen LLP
24 Power of Attorney (included on the signature
page of this Registration Statement)
- --------
(1) Incorporated herein by reference to the Registrant's Registration
Statement on Form S-1 (File No. 333-2144).
<PAGE> 1
Exhibit 5
[Hale and Dorr Letterhead]
June 10, 1997
BioTransplant Incorporated
Charlestown Navy Yard
Building 75, Third Avenue
Charlestown, MA 02129
Re: 1997 Stock Incentive Plan --
Registration Statement on Form S-8
----------------------------------
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 (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act") relating to 750,000 shares of Common Stock, $.01 par value per
share (the "Shares"), of BioTransplant Incorporated, a Delaware corporation (the
"Company"), issuable under the Company's 1997 Stock Incentive Plan (the "Plan").
We have examined the Restated Certificate of Incorporation and 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 our examination of the foregoing documents, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as copies, the authenticity of the originals of such latter documents and the
legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the Shares to register and qualify the Shares for sale under all
applicable state securities or "blue sky" laws. We express no opinion herein as
the laws of any state or jurisdiction other than the state laws of the
Commonwealth of Massachusetts, the Delaware General Corporation Law statute and
the
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federal laws of the United States of America. Based upon and subject to 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 that the
Shares, when issued against payment therefor in accordance with the terms of the
Plan and at a price per share in excess of the par value per share for such
Shares, will be validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in connection
with the offer and sale of the Shares while the Registration Statement is in
effect.
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement in accordance with the requirements of
Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of our
name therein. In giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission.
Please note that we are opining only as to the matters expressly set
forth herein, and no opinion should be inferred as to any other matter.
Very truly yours,
/s/ Hale and Dorr LLP
-------------------------------
HALE AND DORR LLP
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
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 January 28, 1997 included in the Annual Report on Form
10-K (File No. 000-28324) of BioTransplant Incorporated and to all references to
our Firm included in this Registration Statement.
/s/ Arthur Andersen LLP
-----------------------------
Arthur Andersen LLP
Boston Massachusetts
June 10, 1997
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