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As filed with the Securities and Exchange Commission
on June 11, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOSEPRA INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3216867
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
140 LOCKE DRIVE, MARLBOROUGH, MASSACHUSETTS 01752
(Address of Principal Executive Offices) (Zip Code)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
MARK G. BORDEN, ESQ.
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(Name and address of agent for service)
(617) 526-6000
(Telephone number, including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Proposed
Title of maximum maximum
securities to be Amount to be offering price aggregate Amount of
registered registered per share offering price registration fee
- ---------------- -------------- --------------- -------------- ----------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 600,000 shares $2.50(1) $1,500,000(1) $455.00
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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 prices of the Common
Stock on the Nasdaq National Market on June 5, 1997 in accordance with
Rules 457(c) and 457(h) of the Securities Act of 1933.
======================================================================================
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or given
to participants in the 1997 Stock Incentive Plan of BioSepra Inc., a Delaware
corporation (the "Registrant") pursuant to Rule 428(b)(1).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission.
The following documents, which are filed with the Securities and Exchange
Commission, are incorporated in this Prospectus by reference:
(1) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act of 1933, as amended (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 Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the document
referred to in (1) above.
(3) The description of the Common Stock, par value $.01 per share
("Common Stock"), contained in a registration statement filed under the
Exchange Act, including any amendment or report filed for the purpose of
updating such description.
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.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 145 of the Delaware General Corporation Law provides that a
corporation may 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 proceeding,
whether civil, criminal, administrative or investigative, 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 its request in such capacity in another corporation or
business association, 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 102(b)(7) of the Delaware General Corporation Law permits a
corporation to provide in its certificate of incorporation that a director of
the corporation shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law, or (iv) for any transaction
from which the director derived an improper personal benefit.
Article NINTH of the Registrant's Certificate of Incorporation, as amended,
requires the Registrant to indemnify each person who is or was or has agreed to
be a director or officer of the Registrant against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement to the maximum
extent permitted from time to time under the Delaware General Corporation Law,
as amended. In addition, Article EIGHTH provides that no director of the
Registrant shall be liable for monetary damages for any breach of fiduciary
duty, except to the extent that the Delaware General Corporation Law prohibits
the elimination or limitation of liability of directors for breach of fiduciary
duty.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
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Item 8. Exhibits.
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The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
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
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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 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 in 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 Marlborough, Commonwealth of Massachusetts on the
11th day of June, 1997.
BIOSEPRA INC.
By: /s/ Jean-Marie Vogel
--------------------------------
Jean-Marie Vogel
President and
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of BioSepra Inc. hereby
severally constitute Jean-Marie Vogel, Peter Castellanos and Mark G. Borden, 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 behalf in our capacities as officers and directors
to enable BioSepra Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by 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 date indicated.
Signature Title Date
- --------- ----- ----
/s/ Jean-Marie Vogel President, Chief Executive June 11, 1997
- -------------------------------- Officer and Director
Jean-Marie Vogel (Principal Executive and
Financial Officer)
/s/ Timothy J. Barberich Director June 11, 1997
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Timothy J. Barberich
/s/ William E. Rich, Ph.D. Director June 11, 1997
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William E. Rich, Ph.D.
Director June __, 1997
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William M. Cousins, Jr.
/s/ Alexander M. Klibanov, Ph.D. Director June 11, 1997
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Alexander M. Klibanov, Ph.D.
/s/ Paul A. Looney Director June 11, 1997
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Paul A. Looney
/s/ Riccardo Pigliucci Director June 11, 1997
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Riccardo Pigliucci
/s/ David P. Southwell Director June 11, 1997
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David P. Southwell
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EXHIBIT INDEX
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Exhibit
Number Description
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4.1* Certificate of Incorporation of the Registrant, as amended
4.2* By-Laws of the Registrant
4.3* Specimen Certificate of Common Stock 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
23.3 Consent of Coopers & Lybrand L.L.P.
24 Power of Attorney (included in the signature pages of this
Registration Statement)
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* Incorporated herein by reference from the Registrant's Registration
Statement on Form S-1 (File No. 33-75212).
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EXHIBIT 5
HALE AND DORR LLP
COUNSELLORS AT LAW
60 State Street, Boston, Massachusetts 02109
617-526-6000 o fax 617-526-5000
June 11, 1997
BioSepra Inc.
140 Locke Drive
Marlborough, MA 01752
Re: 1997 Stock Incentive Plan
-------------------------
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 600,000 shares of Common Stock, $.01 par value per share
(the "Shares"), of BioSepra Inc., a Delaware corporation (the "Company"),
issuable under the Company's 1997 Stock Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation, as amended and the
By-Laws of the Company, and originals, or copies certified to our satisfaction,
of all pertinent records of the meetings of the directors and stockholders of
the Company, the Registration Statement 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.
Washington, DC Boston, MA London, UK*
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HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE> 2
BioSepra Inc.
June 11, 1997
Page 2
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the shares of its Common Stock covered by the
Registration Statement to be issued under the Plan, as described in the
Registration Statement, and such shares, when issued in accordance with the
terms of the Plan, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ HALE AND DORR LLP
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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 our report dated January 29,
1997, included in BioSepra Inc.'s Form 10-K for the year ended December 31,
1996, and to all reference to our Firm included in this registration statement.
/s/ ARTHUR ANDERSEN LLP
Boston, Massachusetts
June 9, 1997
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EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We consent to the incorporation by reference in this Registration Statement
of BioSepra Inc. on Form S-8 relating to the 1997 Stock Incentive Plan, of our
report dated February 27, 1996, except as to the information in the fourth
paragraph of Note H and the seventh paragraph of Note C, for which the date is
March 29, 1996, on our audits of the consolidated financial statements and
financial schedule of BioSepra Inc. as of December 31, 1995, and for the years
ended December 31, 1995 and 1994, which reports are included in BioSepra Inc.'s
1996 Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
June 10, 1997
