<PAGE> 1
As filed with the Securities and Exchange Commission
on July 23, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BioSphere Medical, 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 Number)
111 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)
<PAGE> 2
CALCULATION OF REGISTRATION FEE
-------------------------------
<TABLE>
<CAPTION>
- ---------------- ------------------ ------------------ -------------------- --------------
Title of Proposed Proposed maximum Amount of
securities to Amount to maximum offering aggregate offering registration
be registered be registered price per share price fee
- ---------------- ------------------ ------------------ -------------------- --------------
<S> <C> <C> <C> <C>
Common Stock, 2,150,000 shares $.8594 (1) $1,847,710 $514.00
$.01 par value
per share
- ---------------- ------------------ ------------------ -------------------- --------------
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee,
and based upon the average of the bid and asked price of the
Registrant's Common Stock as reported by the OTC Bulletin Board on July
20, 1999 in accordance with Rules 457(c) and 457(h) of the Securities
Act of 1933.
<PAGE> 3
STATEMENT OF INCORPORATION BY REFERENCE
---------------------------------------
This Registration Statement on Form S-8 incorporates by reference the
contents of the Registration Statement on Form S-8, File No. 333-28955, filed by
BioSphere Medical, Inc. (f/k/a BioSepra Inc.) (the "Registrant") on June 11,
1997 and the contents of the Registration Statement on Form S-8, File No.
333-58021, filed by the Registrant on June 29, 1998, both relating to the
Registrant's 1997 Stock Incentive Plan.
<PAGE> 4
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 Marlborough, Commonwealth of Massachusetts, on the
23rd day of July, 1999.
BIOSPHERE MEDICAL, INC.
By: /s/ John M. Carnuccio
-------------------------------------
John M. Carnuccio
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of BioSphere Medical, Inc.,
hereby severally constitute and appoint John M. Carnuccio 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 on our behalf and in our capacities as
officers and directors to enable BioSphere Medical, Inc. 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.
<PAGE> 5
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/ John M. Carnuccio President, Chief Executive July 23, 1999
- -------------------------------- Officer and Director
John M. Carnuccio (Principal Executive
Officer)
/s/ Philip V. Holberton Chief Financial Officer July 23, 1999
- -------------------------------- (Principal Financial and
Philip V. Holberton Accounting Officer)
/s/ Timothy J. Barberich Director July 23, 1999
- --------------------------------
Timothy J. Barberich
/s/ William M. Cousins, Jr. Director July 23, 1999
- --------------------------------
William M. Cousins, Jr.
/s/ Alexander M. Klibanov, Ph.D. Director July 23, 1999
- --------------------------------
Alexander M. Klibanov, Ph.D.
/s/ Paul A. Looney Director July 23, 1999
- --------------------------------
Paul A. Looney
/s/ Riccardo Pigliucci Director July 23, 1999
- --------------------------------
Riccardo Pigliucci
/s/ David P. Southwell Director July 23, 1999
- --------------------------------
David P. Southwell
/s/ Jean-Marie Vogel Chairman of the Board of July 23, 1999
- -------------------------------- Directors
Jean-Marie Vogel
<PAGE> 6
EXHIBIT INDEX
-------------
Exhibit
Number
- ------
4.1 Certificate of Incorporation of the Registrant; as amended by an
Amendment to Certificate of Incorporation dated May 17, 1999 and an
Amendment to Certificate of Incorporation dated June 16, 1999
4.2* By-laws of the Registrant
4.3 Specimen Stock 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
24 Power of Attorney (included on the signature page of this
Registration Statement)
- ---------------------
* Incorporated herein by reference from the Registrant's Registration Statement
on Form S-8 (File No. 333-05621).
<PAGE> 1
Exhibit 4.1
CERTIFICATE OF INCORPORATION
OF
BIOSEPRA INC.
FIRST. The name of the Corporation is:
BioSepra Inc.
SECOND. The address of its registered office in the State of Delaware is
Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, County
of New Castle. The name of its registered agent at such address is The
Corporation Trust Company.
THIRD. The nature of the business or purposes to be conducted or
promoted by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 110,000 shares, consisting of (i)
100,000 shares of Common Stock, $.10 par value per share ("Common Stock"), and
(ii) 10,000 shares of Preferred Stock, $.10 par value per share ("Preferred
Stock").
The following is a statement of the designations and the powers,
privileges and rights, and the qualifications, limitations or restrictions
thereof in respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
1. General. The voting, dividend and liquidation rights of
the holders of the Common Stock are subject to and qualified by the rights of
the holders of the Preferred Stock of any series as may be designated by the
Board of Directors upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to
one vote for each share held at all meetings of stockholders (and written
actions in lieu of meetings). There shall be no cumulative voting.
<PAGE> 2
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
3. Dividends. Dividends may be declared and paid on the
Common Stock from funds lawfully available therefor as and when determined by
the Board of Directors and subject to any preferential dividend rights of any
then outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the
Corporation, whether voluntary or involuntary, holders of Common Stock will be
entitled to receive all assets of the Corporation available for distribution to
its stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
Preferred Stock may be issued from time to time in one or more series,
each of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed to constitute different classes of
shares for the purposes of voting by classes unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more series, and in
connection with the creation of any such series, by resolution or resolutions
providing for the issue of the shares thereof, to determine and fix such voting
powers, full or limited, or no voting powers, and such designations, preferences
and relative participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, including without
limitation thereof, dividend rights, conversion rights, redemption privileges
and liquidation preferences, as shall be stated and expressed in such
resolutions, all to the full extent now or hereafter permitted by the General
Corporation Law of Delaware. Without limiting the generality of the foregoing,
the resolutions providing for issuance of any series of Preferred Stock may
provide that such series shall be superior or rank equally or be junior to the
Preferred Stock of any other series to the extent permitted by law. Except as
otherwise provided in this Cerificate of Incorporation, no vote of the holders
of the
-2-
<PAGE> 3
Preferred Stock or Common Stock shall be a prerequisite to the designation or
issuance of any shares of any series of the Preferred Stock authorized by and
complying with the conditions of this Certificate of Incorporation, the right
to have such vote being expressly waived by all present and future holders of
the capital stock of the Corporation.
FIFTH. The name and mailing address of the sole incorporator are as
follows:
<TABLE>
<CAPTION>
NAME MAILING ADDRESS
<S> <C>
Victor H. Woolley BioSepra Inc.
140 Locke Drive
Marlborough, MA 01752
</TABLE>
SIXTH. In furtherance of and not in limitation of powers conferred by
statute, it is further provided:
1. Election of directors need not be by written ballot.
2. The Board of Directors is expressly authorized to adopt, amend
or repeal the By-Laws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between
this corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers
appointed for this corporation under the provisions of section 279 of Title 8
of the Delaware Code order a meeting of the creditors or class of creditors,
and/or of the stockholders or class of stockholders of this corporation, as the
case may be, to be summoned in such manner as the said court directs. If a
majority in number representing three-fourths in value of the creditors or
class of creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been
made, be binding on all the creditors or
-3-
<PAGE> 4
class of creditors, and/or on all the stockholders or class of stockholders, of
this corporation, as the case may be, and also on this corporation.
EIGHTH. 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 Corporation shall be personally
liable to the Corporation or its stockholders for monetary damages for any
breach of fiduciary duty as a director, notwithstanding any provision of law
imposing such liability. No amendment to or repeal of this provision shall
apply to or have any effect on the liability or alleged liability of any
director of the Corporation for or with respect to any acts or omissions of
such director occurring prior to such amendment.
NINTH. 1. Actions, Suits and Proceedings Other than by or in the
Right of the Corporation. The Corporation shall indemnify each 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, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan) (all such persons
being referred to hereafter as an "Indemnitee"), or by reason of any action
alleged to have been taken or omitted in such capacity, against all expenses
(including attorneys' fees), judgements, fines and amounts paid in settlement
actually and reasonably incurred by him or on his behalf in connection with
such action, suit or proceeding and any appeal therefrom, 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. The
termination of any action, suit or proceeding by judgement, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in a
manner which 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 reasonable cause to believe that his conduct was unlawful.
Notwithstanding anything to the contrary in this Article, except as set forth
in Section 7 below, the Corporation shall not indemnify an Indemnitee seeking
indemnification in connection with a
-4-
<PAGE> 5
proceeding (or part thereof) initiated by the Indemnitee unless the initiation
thereof was approved by the Board of Directors of the Corporation.
2. Actions or Suits by or in the Right of the Corporation.
The Corporation shall indemnify any Indemnitee 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 he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at
the request of the Corporation, as a director, officer or trustee of, or in a
similar capacity with, another corporation, partnership, joint venture, trust
or other enterprise (including any employee benefit plan), or by reason of any
action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees) and amounts paid in settlement actually
and reasonably incurred by him or on his behalf in connection with such action,
suit or proceeding and any appeal therefrom, 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, except that no indemnification shall 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 Court of
Chancery of Delaware or the court in which such action or suit was brought shall
determine upon application, that, despite the adjudication of such liability
but in view of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses (including attorneys' fees)
which the Court of Chancery of Delaware or such other court shall deem proper.
3. Indemnification for Expenses of Successful Party.
Notwithstanding the other provisions of this Article, to the extent that an
Indemnitee has been successful, on the merits or otherwise, in defense of any
action, suit or proceeding referred to in Sections 1 and 2 of this Article, or
in defense of any claim, issue or matter therein, or on appeal from any such
action, suit or proceeding, he shall be indemnified against all expenses
(including attorneys' fees) actually and reasonably incurred by him or on his
behalf in connection therewith. Without limiting the foregoing, if any action,
suit or proceeding is disposed of, on the merits or otherwise (including a
disposition without prejudice), without (i) the disposition being adverse to
the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the
Corporation, (iii) a plea of guilty or nolo contendere by the Indemnitee, (iv)
an adjudication that the Indemnitee did not act in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and (v) with
-5-
<PAGE> 6
respect to any criminal proceeding, an adjudication that the Indemnitee has
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. Notification and Defense of Claim. As a condition precedent to
his right to be indemnified, the Indemnitee must notify the Corporation in
writing as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded
that there may be a conflict of interest or position on any significant issue
between the Corporation and the Indemnitee in the conduct of the defense of
such action or (iii) the Corporation shall not in fact have employed counsel to
assume the defense of such action, in each of which cases the fees and expenses
of counsel for the Indemnitee shall be at the expense of the Corporation,
except as otherwise expressly provided by this Article. The Corporation shall
not be entitled, without the consent of the Indemnitee, to assume the defense
of any claim brought by or in the right of the Corporation or as to which
counsel for the Indemnitee shall have reasonably made the conclusion provided
for in clause (ii) above.
5. Advance of Expenses. Subject to the provisions of Section 6
below, in the event that the Corporation does not assume the defense pursuant
to Section 4 of this Article of any action, suit, proceeding or investigation
of which the Corporation receives notice under this Article, any expenses
(including attorneys' fees) incurred by an Indemnitee in defending a civil or
criminal action, suit, proceeding or investigation or any appeal therefrom
shall be paid by the Corporation in advance of the final disposition of such
matter, provided, however, that the payment of such expenses incurred by an
Indemnitee in advance of the final disposition of such matter shall be made
only upon receipt of an
-6-
<PAGE> 7
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article.
Such undertaking may be accepted without reference to the financial ability of
such person to make such repayment.
6. Procedure for Indemnification. In order to obtain
indemnification or advancement of expenses pursuant to Section 1, 2, 3 or 5 of
this Article, the Indemnitee shall submit to the Corporation a written request,
including in such request such documentation and information as is reasonably
available to the Indemnitee and is reasonably necessary to determine whether
and to what extent the Indemnitee is entitled to indemnification or advancement
of expenses. Any such indemnification or advancement of expenses shall be made
promptly, and in any event within 60 days after receipt by the Corporation of
the written request of the Indemnitee, unless with respect to requests under
Section 1, 2 or 5 the Corporation determines within such 60-day period that the
Indemnitee did not meet the applicable standard of conduct set forth in Section
1 or 2, as the case may be. Such determination shall be made in each instance
by (a) a majority vote of a quorum of the directors of the Corporation
consisting of persons who are not at that time parties to the action, suit or
proceeding in question ("disinterested directors"), (b) if no such quorum is
obtainable, a majority vote of a committee of two or more disinterested
directors, (c) a majority vote of a quorum of the outstanding shares of stock
of all classes entitled to vote for directors, voting as a single class, which
quorum shall consist of stockholders who are not at that time parties to the
action, suit or proceeding in question, (d) independent legal counsel (who may
be regular legal counsel to the Corporation), or (e) a court of competent
jurisdiction.
7. Remedies. The right to indemnification or advances as granted
by this Article shall be enforceable by the Indemnitee in any court of
competent jurisdiction if the Corporation denies such request, in whole or in
part, or if no disposition thereof is made within the 60-day period referred to
above in Section 6. Unless otherwise required by law, the burden of proving
that the Indemnitee is not entitled to indemnification or advancement of
expenses under this Article shall be on the Corporation. Neither the failure of
the Corporation to have made a determination prior to the commencement of such
action that indemnification is proper in the circumstances because the
Indemnitee has met the applicable standard of conduct, nor an actual
determination by the Corporation pursuant to Section 6 that the Indemnitee has
not met such applicable standard of conduct, shall be a defense to the action
or create a presumption that the Indemnitee has not met the
-7-
<PAGE> 8
applicable standard of conduct. The Indemnitee's expenses (including attorneys'
fees) incurred in connection with successfully establishing his right
indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
8. Subsequent Amendment. No amendment, termination or repeal of
this Article or of the relevant provisions of the General Corporation Law of
Delaware or any other applicable laws shall affect or diminish in any way the
rights of any Indemnitee to indemnification under the provisions hereof with
respect to any action, suit, proceeding or investigation arising out of or
relating to any actions, transactions or facts occurring prior to the final
adoption of such amendment, termination or repeal.
9. Other Rights. The indemnification and advancement of expenses
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of
stockholders or disinterested directors or otherwise, both as to action in his
official capacity and as to action in any other capacity while holding office
for the Corporation, and shall continue as to an Indemnitee who has ceased to
be a director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time
to time by its Board of Directors, grant indemnification rights to other
employees or agents of the Corporation or other persons serving the Corporation
and such rights may be equivalent to, or greater or less than, those set forth
in this Article.
10. Partial Indemnification. If an Indemnitee is entitled under
any provision of this Article to indemnification by the Corporation for some or
a portion of the expenses (including attorneys' fees), judgments, fines or
amounts paid in settlement actually and reasonably incurred by him or on his
behalf in connection with any action, suit, proceeding or investigation and any
appeal therefrom but not, however, for the total amount thereof, the
Corporation shall nevertheless indemnify the Indemnitee for the portion of such
expenses (including attorneys' fees), judgments, fines or amounts paid in
settlement to which the Indemnitee is entitled.
-8-
<PAGE> 9
11. Insurance. The Corporation may purchase and maintain
insurance, at its expense, to protect itself and any director, officer, employee
or agent of the Corporation or another corporation, partnership, joint venture,
trust or other enterprise (including any employee benefit plan) against any
expense, liability or loss incurred by him in any such capacity, or arising out
of his status as such, whether or not the Corporation would have the power to
indemnify such person against such expense, liability or loss under the General
Corporation Law of Delaware.
12. Merger or Consolidation. If the Corporation is merged into or
consolidated with another corporation and the Corporation is not the surviving
corporation, the surviving corporation shall assume the obligations of the
Corporation under this Article with respect to any action, suit, proceeding or
investigation arising out of or relating to any actions, transactions or facts
occurring prior to the date of such merger or consolidation.
13. Savings Clause. If this Article or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amount paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent
permitted by applicable law.
14. Definitions. Terms used herein and defined in Section 145(h)
and Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
15. Subsequent Legislation. If the General Corporation Law of
Delaware is amended after adoption of this Article to expand further the
indemnification permitted to Indemnitees, then the Corporation shall indemnify
such persons to the fullest extent permitted by the General Corporation Law of
Delaware, as so amended.
TENTH. The Corporation reserves the right to amend, alter, change or
repeal any provision contained in this Certificate of Incorporation, in the
manner now or hereafter prescribed by statute and this Certificate of
Incorporation, and all rights conferred upon stockholders herein are granted
subject to this reservation.
-9-
<PAGE> 10
EXECUTED at Marlborough, Massachusetts, on December 31, 1993.
/s/ Victor H. Woolley
--------------------------
Incorporator
-10-
<PAGE> 11
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BIOSEPRA INC.
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
BIOSEPRA INC. (the "Corporation"), organized and existing under and by
virtue of the General Corporation Law of the State of Delaware, does hereby
certify:
The Board of Directors of the Corporation, acting pursuant to Section
242 of the General Corporation Law of the State of Delaware, at a meeting duly
called and held, duly adopted the following resolution setting forth an
amendment to the Certificate of Incorporation of the Corporation and declaring
said amendment to be advisable (the "Amendment"). The sole stockholder of the
Corporation, by written action in lieu of a meeting, duly approved the
Amendment, in accordance with the General Corporation law of the State of
Delaware.
The resolution setting forth the Amendment is as follows:
RESOLVED: That the first paragraph of Article FOURTH of the Certificate
of Incorporation of the Corporation be and hereby is amended
to read as follows:
"FOURTH. The total number of shares of all classes of stock
which the Corporation shall have authority to issue is
13,000,000 shares, consisting of (i) 12,000,000 shares of
Common Stock, $.01 par value per share ("Common Stock"), and
(ii) 1,000,000 shares of Preferred Stock, $.01 par value per
share ("Preferred Stock")."
<PAGE> 12
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and the Certificate of Amendment to be signed by its President
and attested by its Secretary this 31st day of January, 1994.
/s/ William E. Rich
------------------------------------
William E. Rich
President
ATTEST:
/s/ Victor H. Woolley
- -----------------------------------
Victor H. Woolley
Secretary
-2-
<PAGE> 13
CERTIFICATE OF AMENDMENT
OF THE
CERTIFICATE OF INCORPORATION
OF
BIOSEPRA INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
------------------------------------------------
BioSepra Inc. (hereinafter referred to as the "Corporation"), a
corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation, the Board of
Directors duly adopted resolutions pursuant to Section 242 of the General
Corporation Law of the State of Delaware, setting forth an amendment to the
Certificate of Incorporation of the Corporation and declaring said amendment to
be advisable. The holders of Common Stock of the Corporation duly approved said
proposed amendment by written consent in accordance with Sections 228 and 242 of
the General Corporation Law of the State of Delaware. The amendment is as
follows:
RESOLVED: That Article FIRST of the Corporation's Certificate of Incorporation
be deleted in its entirety and that the following be inserted in lieu
thereof:
<PAGE> 14
FIRST. The name of the Corporation is BioSphere Medical,
Inc. (the "Corporation").
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment of the Certificate of Incorporation of the Corporation to be duly
executed on its behalf by its President this 17th day of May, 1999.
BIOSEPRA INC.
By: /s/ Jean-Marie Vogel
------------------------------
Jean-Marie Vogel
President
2
<PAGE> 15
CERTIFICATE OF AMENDMENT
OF THE
AMENDED
CERTIFICATE OF INCORPORATION
OF
BIOSPHERE MEDICAL, INC.
Pursuant to Section 242 of the
General Corporation Law of the State of Delaware
------------------------------------------------
BioSphere Medical, Inc. (hereinafter referred to as the "Corporation"),
a corporation organized and existing under and by virtue of the General
Corporation Law of the State of Delaware, does hereby certify as follows:
At a meeting of the Board of Directors of the Corporation, the Board of
Directors duly adopted a resolution setting forth an amendment to the Amended
Certificate of Incorporation of the Corporation and declaring said amendment to
be advisable. The stockholders of the Corporation duly approved said proposed
amendment at the annual meeting of the stockholders. The amendment is as
follows:
RESOLVED: That the first Paragraph of Article FOURTH of the Certificate of
Incorporation of the Corporation be and hereby is amended to read as
follows:
FOURTH. The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 26,000,000 shares, consisting of
(i) Twenty-Five Million (25,000,000) shares of Common Stock, $.01 par value per
share
3
<PAGE> 16
("Common Stock"), and (ii) One Million (1,000,000) shares of Preferred Stock,
$.01 par value per share ("Preferred Stock").
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Amendment to the Amended Certificate of
Incorporation of the Corporation to be duly executed on its behalf by its
President this 16th day of June, 1999.
BIOSPHERE MEDICAL, INC.
By: /s/ John M. Carnuccio
------------------------------
John M. Carnuccio
President
4
<PAGE> 1
Exhibit 4.3
BioSphere Medical, Inc.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK CUSIP 09066V 10
- --------------------------------------------------------------------------------
THIS CERTIFIES THAT SEE REVERSE FOR
CERTAIN DEFINITIONS
IS THE OWNER OF
- --------------------------------------------------------------------------------
fully paid and non-assessable shares of the Common Stock, $0.01 par value, of
CERTIFICATE OF STOCK
- --------------------------- BIOSPHERE MEDICAL, INC. ----------------------------
transferrable only on the books of the Corporation by the holder hereof in
person or by duly authorized attorney upon surrender of this certificate
properly endorsed or assigned.
This certificate and the shares of Common Stock represented hereby are
issued and held subject to the laws of the State of Delaware and to the
Cerificate of Incorporation and the By-laws of the Corporation, each as from
time to time amended. This certificate is not valid unless countersigned by the
Transfer Agent and registered by the Registrar.
IN WITNESS WHEREOF the Corporation has caused this certificate to be signed
by the facsimile signatures of its duly authorized officers and sealed with the
facsimile seal of the Corporation.
DATED:
AUTHORIZED SIGNATURE
BIOSPHERE MEDICAL, INC.
/s/ Philip V. Holberton [BIOSPHERE FACSIMILE /s/ John M. Carnuccio
SECRETARY SEAL] PRESIDENT
<PAGE> 2
BIOSPHERE MEDICAL, INC.
The Corporation has more than one class of stock authorized to be issued.
The Corporation will furnish without charge to each stockholder upon written
request a copy of the full text of the preferences, voting powers,
qualifications and special and relative rights of the shares of each class of
stock (and any series thereof) authorized to be issued by the Corporation as set
forth in the Certificate of Incorporation and amendments thereto filed with the
Secretary of State of the State of Delaware.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<CAPTION>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT................Custodian...................
(Cust) (Minor)
TEN ENT -- as tenants by the entireties Under Uniform Gift to Minors Act
...................
JT TEN -- as joint tenants with right of (State)
survivorship and not as tenants
in common
</TABLE>
Additional abbreviations may also be used though not in the above list
For value received, ______________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- -------------------------------------- .........................................
................................................................................
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS including POSTAL ZIP CODE OF ASSIGNEE
................................................................................
................................................................................
....................................................................... Shares
of the capital stock represented by the within Certificate, and do hereby
irevocably constitute and appoint ..............................................
Attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
Dated ...............................
................................
NOTICE: The Signature to this assignment must correspond with the name as
written upon the face of the Certificate in every particular, without alteration
or enlargement, or any change whatever.
<PAGE> 1
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 o fax 617-526-5000
EXHIBIT 5
EXHIBIT 23.1
July 23, 1999
BioSphere Medical, Inc.
111 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 on July 23, 1999 with the
Securities and Exchange Commission relating to 2,150,000 shares of the Common
Stock, $.01 par value per share (the "Shares"), of BioSphere Medical, 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 our 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.
We have not made any investigation of the laws of any jurisdiction
other than the Commonwealth of Massachusetts, the federal laws of the United
States and the Delaware General Corporation Law statute, and we are opining
herein solely with respect to the laws of the Commonwealth of Massachusetts, the
federal laws of the United States and the Delaware General Corporation Law
statute. To the extent that the laws of any other jurisdiction govern the
agreements or transactions as to which we are opining herein, we have assumed,
with your permission, that such laws are identical to those of the Commonwealth
of
Washington, DC Boston, MA London, UK*
- --------------------------------------------------------------------------------
HALE AND DORR LLP INCLUDES PROFESSIONAL CORPORATIONS
*BROBECK HALE AND DORR INTERNATIONAL (AN INDEPENDENT JOINT VENTURE LAW FIRM)
<PAGE> 2
BioSphere Medical, Inc.
July 23, 1999
Page 2
Massachusetts, and we are expressing no opinion herein as to whether such
assumption is reasonable or correct.
Based upon the foregoing, we are of the opinion that the Shares, when
issued and paid for 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 legally
issued, fully-paid and nonassessable.
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 LLP
------------------------------
HALE AND DORR LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
February 2, 1999 included in BioSphere Medical, Inc. and subsidiaries (formerly
known as BioSepra, Inc.) Form 10-K for the year ended December 31, 1998 and to
all references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
------------------------------
Arthur Andersen LLP
Boston, Massachusetts
July 22, 1999
