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As filed with the Securities and Exchange Commission on July 21, 2000
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
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)
1050 HINGHAM STREET, ROCKLAND, MASSACHUSETTS 02370
(Address of Principal Executive Offices) (Zip Code)
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JOHN M. CARNUCCIO
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BIOSPHERE MEDICAL, INC.
1050 HINGHAM STREET
ROCKLAND, MASSACHUSETTS 02370
(Name and Address of Agent for Service)
(781) 681-7900
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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----------------------------- ----------------- ---------------------- --------------------- -----------------------
Proposed
Title of Proposed Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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<S> <C> <C> <C> <C>
Common Stock, 50,000 shares $15.50(1) $775,000(1) $205
$0.01 par value
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 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 is included in documents sent or
given to participants in BioSphere Medical, Inc.'s ("the Registrant") 2000
Employee Stock Purchase Plan 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 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 "Commission"). The following documents, which are on file with
the Commission, are incorporated in this registration statement 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 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 of the Registrant,
$0.01 par value per share (the "Common Stock"), contained in a
registration statement on Form 8-A 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. Any statement
contained in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of the Registrant's Certificate of Incorporation 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 attorney's
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 or officer 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.
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 stockholder, (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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
1. The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
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(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 information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in the registration statement.
(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
2. The undersigned 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 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 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 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 Rockland, Massachusetts, on this 21st day of July, 2000.
BIOSPHERE MEDICAL, INC.
By: /s/ John M. Carnuccio
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John M. Carnuccio
President and Chief Executive
Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of BioSphere Medical, Inc.
hereby severally constitute and appoint John M. Carnuccio and Robert M.
Palladino, 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 BioSphere Medical, 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 by the following persons in the capacities and on the
dates indicated.
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Signature Title Date
<S> <C> <C>
/s/ John M. Carnuccio President, Chief Executive Officer and July 21, 2000
-------------------------------- Director (Principal Executive Officer)
John M. Carnuccio
/s/ Robert M. Palladino Vice President and Chief Financial July 21, 2000
-------------------------------- Officer (Principal Accounting Officer)
Robert M. Palladino
/s/ Jean-Marie Vogel Chairman and Director July 21, 2000
--------------------------------
Jean-Marie Vogel
/s/ Timothy J. Barberich Director July 21, 2000
--------------------------------
Timothy J. Barberich
/s/ William M. Cousins, Jr. Director July 21, 2000
--------------------------------
William M. Cousins, Jr.
/s/ Alexander M. Klibanov, Ph.D. Director July 21, 2000
--------------------------------
Alexander M. Klibanov, Ph.D.
/s/ Paul A. Looney Director July 21, 2000
--------------------------------
Paul A. Looney
/s/ Riccardo Pigliucci Director July 21, 2000
--------------------------------
Riccardo Pigliucci
Director July 21, 2000
--------------------------------
David P. Southwell
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EXHIBIT INDEX
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Exhibit
Number Description
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3.1 (1) Certificate of Incorporation, as amended, of the Registrant.
3.2 (1) By-Laws of the Registrant.
4.1 (2) Specimen certificate for shares of the Registrant's common stock.
5.1 Opinion of Hale and Dorr LLP.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included in page II-6).
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(1) Incorporated herein by reference from the Registrant's Registration
Statement on Form S-8, dated June 10, 1996 (File No. 333-05621).
(2) Incorporated herein by reference from the Registrant's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999.
