-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, D4nmINd2P4YFl48jKbR6hhi3BOfW0WtoVekJBQrhevXaSofgwIv4VnotS0mvlPtG tmzLYt/j1XRkXJjMjPSIpA== 0000922409-96-000061.txt : 19960913 0000922409-96-000061.hdr.sgml : 19960913 ACCESSION NUMBER: 0000922409-96-000061 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960912 EFFECTIVENESS DATE: 19961001 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: INNOVASIVE DEVICES INC CENTRAL INDEX KEY: 0001003608 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 043132641 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-11815 FILM NUMBER: 96628992 BUSINESS ADDRESS: STREET 1: 734 FOREST ST CITY: MARLBOROUGH STATE: MA ZIP: 01752 BUSINESS PHONE: 5084346000 MAIL ADDRESS: STREET 1: 734 FOREST STREET CITY: MARLBOROUGH STATE: MA ZIP: 01752 S-8 1 As filed with the Securities and Exchange Commission on September 12, 1996. Registration No. 333-________ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ___________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 INNOVASIVE DEVICES, INC. (Exact name of registrant as specified in its charter) 04-3132641 (I.R.S. employer identification no.) Massachusetts (State or other jurisdiction of incorporation or organization) 734 Forest Street, Marlborough, MA 01752-3032 (Address of principal executive offices) (Zip Code) 1992 Minivasive Stock Option Plan 1996 Omnibus Stock Option Plan 1996 Non-Employee Director Stock Option Plan 1996 Employee Stock Purchase Plan (Full title of plans) Richard D. Randall, President and Chief Executive Officer Innovasive Devices, Inc. 734 Forest Street Marlborough, MA 01752-3032 (Name and address of agent for service) (508) 460-8229 (Telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Title of Amount Proposed Proposed Amount securities to be maximum maximum of to be registered offering aggregate registration registered (1) price per offering fee share (2) price (2) _______________ __________ _________ _____________ ____________ Common Stock, 1,088,425 $10.125 $11,020,303.13 $3,800.10 $.0001 par value shares (1) Plus such additional number of shares as may be required pursuant to the Plan in the event of a stock dividend, split-up of shares, recapitalization or other similar change in the Common Stock. (2) Estimated solely for the purpose of calculating the registration fee, in accordance with Rule 457(h)(1), on the basis of the average of the high and low prices of the Common Stock as reported on the Nasdaq National Market on September 9, 1996. EXPLANATORY NOTE This Registration Statement has been prepared in accordance with the requirements of Form S-8, as amended, and relates to an aggregate of 1,088,425 shares of Common Stock, $.0001 par value, of Innovasive Devices, Inc. (the "Company") which have been reserved for issuance under the Company's 1992 Minivasive Stock Option Plan, as amended (688,425 shares), the Company's 1996 Omnibus Stock Option Plan (250,000 shares), the Company's 1996 Non-Employee Director Stock Option Plan (100,000 shares) and the Company's 1996 Employee Stock Purchase Plan (50,000 shares). PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents are hereby incorporated by reference in this Registration Statement: (a) The Company's prospectus dated June 6, 1996 filed with the Securities and Exchange Commission (the "Commission") pursuant to Rule 424(b) under the Securities Act of 1933, as amended; (b) The description of the Company's Common Stock incorporated by reference in the Company's registration statement on Form 8-A (SEC File No. 0-28492) filed with the Commission on May 13, 1996 from the registration statement on Form S-1 (SEC File No. 333-3368) filed with the Commission on June 5, 1996; and (c) The Company's Form 8-K filed with the Commission on July 24, 1996. In addition, all documents filed by the Company after the initial filing date of this registration statement pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and prior to the filing of a post-effective amendment which indicates that all shares registered hereunder have been sold or which de-registers all shares then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel The legality of the shares of Common Stock offered hereby has been passed upon for the Company by Choate, Hall & Stewart, 53 State Street, Exchange Place, Boston, Massachusetts 02109. Roslyn G. Daum, a partner of the firm, is Clerk of the Company. Item 6. Indemnification of Officers and Directors Section 67 of Chapter 156B of the Massachusetts General Laws provides that a corporation may indemnify its directors and officers to the extent specified in or authorized by (i) the articles of organization, (ii) a by-law adopted by the stockholders, or (iii) a vote adopted by the holders of a majority of the shares of stock entitled to vote on the election of directors. In all instances, the extent to which a corporation provides indemnification to its directors and officers under Section 67 is optional. In its Third Restated Articles of Organization, the Registrant has elected to commit to provide indemnification to its directors and officers in specified circumstances. Generally, Article 6 of the Registrant's Third Restated Articles of Organization indemnifies directors and officers of the Registrant against liabilities and expenses arising out of legal proceedings brought against them by reason of their status as directors or officers, by reason of their agreeing to serve, at the request of the Registrant, as a director or officer with an other organization or by reason of their serving at the request of the Registrant in any capacity with respect to any employee benefit plan. Under this provision, a director or officer of the Registrant shall be indemnified by the Registrant for all costs and expenses (including attorneys fees), judgments, liabilities and amounts paid in settlement of such proceedings, even if he is not successful on the merits, if he acted in good faith in the reasonable belief that his action was in the best interests of the Registrant or, in the case of an employee benefit plan, in the best interest of the participants or beneficiaries of such plan. The Board of Directors may authorize advancing litigation expenses to a director or officer at his request upon receipt of an undertaking by any such director or officer to repay such expenses if it is ultimately determined that he is not entitled to indemnification for such expenses. Article 6 of the Registrant's Third Restated Articles of Organization eliminates the personal liability of the Registrant's directors to the Registrant or its stockholders for monetary damages for breach of a director's fiduciary duty, except to the extent Chapter 156B of the Massachusetts General Laws prohibits the elimination or limitation of such liability. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits 5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares being registered. 10.1 Registrant's 1992 Minivasive Stock Option Plan (incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1 (File No. 333-3368). 10.2 Registrant's 1996 Omnibus Stock Option Plan (incorporated by reference to Exhibit 10.2 of the Company's Registration Statement on Form S-1 (File No. 333-3368). 10.3 Registrant's 1996 Non-Employee Director Stock Option Plan (incorporated by reference to Exhibit 10.3 of the Company's Registration Statement on Form S-1 (File No. 333-3368)). 10.4 Registrant's 1996 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 of the Company's Registration Statement on Form S-1 (File No. 333-3368)). 23.1 Consent of Price Waterhouse LLP. 23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1). 24.1 Power of Attorney (included in page II-6). Item 9. Undertakings (a) The Company hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement 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; (2) that, for the purpose of determining any liability under the Securities Act of 1933, as amended (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; and (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. (b) The Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or 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. (h) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing a 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 September 9, 1996. Innovasive Devices, Inc. (Issuer and Employer) By: James V. Barrile Vice President and Chief Financial Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Richard D. Randall, James V. Barrile and Roslyn G. Daum, jointly and severally, his true and lawful attorneys-in-fact and agents with full powers of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below on the dates indicated by the following persons in the capacities indicated. Name Capacity Date /s/ Richard D. Randall President, Chief Executive 9/5/96 Richard D. Randall Officer and Director (Principal Executive Officer) /s/ James V. Barrile Chief Financial Officer 9/9/96 James V. Barrile (Principal Financial and Accounting Officer) /s/ James E. Nicholson Director 9/9/96 James E. Nicholson /s/ Joseph A. Ciffolillo Director 9/9/96 Joseph A. Ciffolillo /s/ Thomas C. McConnell Director 9/5/96 Thomas C. McConnell /s/ Robert R. Momsen Director 9/6/96 Robert R. Momsen /s/ Howard D. Palefsky Director 9/5/96 Howard D. Palefsky INDEX TO EXHIBITS Exhibit Number Page 5.1 Opinion of Choate, Hall & Stewart 10.1 Registrant's 1992 Minivasive Stock Option Plan (incorporated by reference to Exhibit 10.1 of the Company's Registration Statement on Form S-1 (File No. 333-3368)). 10.2 Registrant's 1996 Omnibus Stock Option Plan (incorporated by reference to Exhibit 10.2 of the Company's Registration Statement on Form S-1 (File No. 333-3368)). 10.3 Registrant's 1996 Non-Employee Director Stock Option Plan (incorporated by reference to Exhibit 10.3 of the Company's Registration Statement on Form S-1 (File No. 333- 3368)). 10.4 Registrant's 1996 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 of the Company's Registration Statement on Form S-1 (File No. 333-3368)). 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1) 24.1 Power of Attorney (included in page II-6) 1-287549 EX-5 2 Exhibit 5.1 CHOATE, HALL & STEWART A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS EXCHANGE PLACE 53 STATE STREET BOSTON, MASSACHUSETTS 02109-2891 TELEPHONE (617)248-5000 FACSIMILE (617)248-4000 TELEX 49615860 September 11, 1996 Innovasive Devices, Inc. 734 Forest Street Marlborough, Massachusetts 01752-3032 Gentlemen: This opinion is delivered to you in connection with the registration statement on Form S-8 (the "Registration Statement") to be filed on or about September 11, 1996 by Innovasive Devices, Inc. (the "Company") under the Securities Act of 1933, as amended, for registration under said Act of 1,088,425 shares of common stock, $.0001 par value (the "Common Stock"), of the Company. We are familiar with the Company's Third Restated Articles of Organization, as amended, its By-Laws, as amended, and its corporate minute book as well as the Registration Statement. We have also examined such other documents, records and certificates and made such further investigation as we have deemed necessary for the purposes of this opinion. Based upon and subject to the foregoing, we are of the opinion that the shares of Common Stock to be sold by the Company under its 1992 Minivasive Stock Option Plan, its 1996 Omnibus Stock Option Plan, its 1996 Non-Employee Directors Stock Option Plan and its 1996 Employee Stock Purchase Plan, each as in effect on the date hereof, when issued against receipt of the agreed purchase price therefor, will be legally issued, fully paid and nonassessable. We understand that this opinion is to be used in connection with the Registration Statement and consent to the filing of this opinion as an exhibit to the Registration Statement. We further consent to the reference to this firm in the section entitled "Interests of Named Experts and Counsel" in the Registration Statement. Very truly yours, CHOATE, HALL & STEWART 1-289573 EX-23 3 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated May 7, 1996 appearing on page F-2 of Innovasive Devices, Inc.'s Prospectus constituting part of Registration Statement on Form S-1 (No. 333-3368). PRICE WATERHOUSE LLP Boston, Massachusetts September 9, 1996 -----END PRIVACY-ENHANCED MESSAGE-----