-----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, SFRMWYtZDms0MJb38BWitUej+rdUQznDg67sJ8kn2qNhpGEeSRs2RqrconxEtV+A qpFgKgJCmzFmG1rLVaJYDA== 0000927016-99-002660.txt : 19990722 0000927016-99-002660.hdr.sgml : 19990722 ACCESSION NUMBER: 0000927016-99-002660 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990721 EFFECTIVENESS DATE: 19990721 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: SEC FILE NUMBER: 333-83387 FILM NUMBER: 99667931 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 FORM S-8 As filed with the Securities and Exchange Commission on July 21, 1999. 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) 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
================================================================================ Proposed Proposed Title of maximum maximum Amount securities Amount offering aggregate of to be to be price per offering registration registered registered(1) share (2) price (2) fee - -------------------------------------------------------------------------------- Common Stock, 100,000 $3.03125 $303,125 $84.27 $.0001 par shares value ================================================================================
(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 July 14, 1999. 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 100,000 shares of Common Stock, $.0001 par value, of Innovasive Devices, Inc. (the "Company") which have been reserved for issuance under the Company's 1996 Employee Stock Purchase Plan, which shares represent an increase in the number of shares reserved for issuance under such plan. 50,000 shares have been previously registered under such plan. 1 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 Form 10-K for the year ended December 31, 1998 filed with the Securities and Exchange Commission (the "Commission") under the Securites Exchange Act of 1934, as amended (the "Exchange Act"); and (b) The Company's Form 10-Q for the quarter ended March 31, 1999 filed with the Commission under the Exchange Act; and (c) 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. 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, 1 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. 2 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 1996 Employee Stock Purchase Plan (as amended and restated on July 14,1999). 23.1 Consent of PricewaterhouseCoopers 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 3 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. 4 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 July 14, 1999. Innovasive Devices, Inc. (Issuer and Employer) By: /s/ Richard D. Randall --------------------------- Richard D. Randall President and Chief Executive Officer 5 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 as of the dates indicated by the following persons in the capacities indicated.
Name Capacity Date - -------------------------- ----------------------------- ------- /s/ Richard D. Randall President, Chief Executive 7/14/99 - -------------------------- Officer and Director Richard D. Randall (Principal Executive Officer) /s/ James V. Barrile Chief Financial Officer 7/14/99 - -------------------------- (Principal Financial James V. Barrile and Accounting Officer) /s/ Joseph A. Ciffolillo Director 7/14/99 - -------------------------- Joseph A. Ciffolillo /s/ Alan Chervitz Director 7/14/99 - -------------------------- Alan Chervitz /s/ Robert R. Momsen Director 7/14/99 - -------------------------- Robert R. Momsen /s/ Howard D. Palefsky Director 7/14/99 - -------------------------- Howard D. Palefsky
6 INDEX TO EXHIBITS ----------------- Exhibit Number - -------------- 5.1 Opinion of Choate, Hall & Stewart as to the legality of the shares being registered. 10.1 Registrant's 1996 Employee Stock Purchase Plan (as amended and restated on July 14, 1999). 23.1 Consent of PricewaterhouseCoopers LLP. 23.2 Consent of Choate, Hall & Stewart (included in Exhibit 5.1). 24.1 Power of Attorney (included in page II-6). 1 EX-5.1 2 OPINION OF CHOATE, HALL & STEWART 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 July 21, 1999 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 July 21, 1999 by Innovasive Devices, Inc. (the "Company") under the Securities Act of 1933, as amended, for registration under said Act of 100,000 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 1996 Employee Stock Purchase Plan, 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 EX-10.1 3 REGISTRANT'S 1996 EMPLOYEE STOCK INNOVASIVE DEVICES, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN As Amended and Resated as of July 14, 1999 1. PURPOSE. The purpose of this Employee Stock Purchase Plan (the "Plan") is ------- to provide employees of Innovasive Devices, Inc., a Massachusetts corporation (the "Company"), and its subsidiaries, an opportunity to purchase Common Stock, $.0001 par value, of the Company (the "Shares"). The Plan is intended to qualify as an "employee stock purchase plan" within the meaning of Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"). 2. ADMINISTRATION OF THE PLAN. The Board of Directors (the "Board") or any -------------------------- committee or persons to whom it delegates its authority (the "Administrator") shall administer, interpret and apply all provisions of the Plan. The Administrator may waive such provisions of the Plan as it deems necessary to meet special circumstances not anticipated or covered expressly by the Plan. Nothing contained in this Section shall be deemed to authorize the Administrator to alter or administer the provisions of the Plan in a manner inconsistent with the provisions of Section 423 of the Code. No member of the Administrator shall be liable for any action or determination made in good faith with respect to the Plan or any right granted under it. 3. ELIGIBLE EMPLOYEES. Subject to the provisions of paragraphs 8, 9 and 10 ------------------ below, any individual who is in the full-time employment (as defined below) of the Company or any of its subsidiaries (as defined in Section 424(f) of the Code), the employees of which are designated by the Board as eligible to participate in the Plan, is eligible to participate in any Offering of Shares (as defined in paragraph 4 below) made by the Company hereunder. Full-time employment shall include all employees whose customary employment is: (a) at least 20 hours per week; and (b) more than five months in the relevant calendar year. 4. OFFERING DATES. From time to time the Company, by action of the Board, -------------- will grant rights to purchase Shares to employees eligible to participate in the Plan pursuant to one or more offerings (each of which is an "Offering") on a date or series 1 of dates (each of which is an "Offering Date") designated for this purpose by the Board. 5. PRICES. The price per share for each grant of rights hereunder shall be ------ the lesser of: (a) eighty-five percent (85%) of the fair market value of a Share on the Offering Date on which such right was granted; or (b) eighty-five percent (85%) of the fair market value of a Share on the date such right is exercised. At its discretion, the Board may determine a higher price for a grant of rights. For purposes of this Plan, the term "fair market value" on any date means (i) the average (on that date) of the high and low prices for shares of the Common Stock on the principal national securities exchange on which the Common Stock is traded, if the Common Stock is then traded on a national securities exchange; or (ii) the last reported sale price (on that date) of the Common Stock on the Nasdaq National Market, if the Common Stock is not then traded on a national securities exchange; or (iii) the closing bid price (or average of bid prices) last quoted (on that date) by an established quotation service for over-the-counter securities, if the Common Stock is not listed on the Nasdaq National Market or on a national securities exchange. If the Common Stock is not publicly traded at the time a right is granted under this Plan, "fair market value" shall mean the fair market value of the Common Stock as determined by the Administrator after taking into consideration all factors which it deems appropriate, including, without limitation, recent sale and offer prices of shares of the Common Stock in private transactions negotiated at arm's length. 6. EXERCISE OF RIGHTS AND METHOD OF PAYMENT. ---------------------------------------- (a) Rights granted under the Plan will be exercisable periodically on specified dates as determined by the Board. (b) The method of payment for Shares purchased upon exercise or rights granted hereunder shall be through regular payroll deductions or by lump sum cash payment, or both, as determined by the Board. No interest shall be paid upon payroll deductions unless specifically provided for by the Board. (c) Any payments received by the Company from a participating employee and not utilized for the purchase of Shares upon exercise of a right granted hereunder shall be promptly 2 returned to such employee by the Company after termination of the right to which the payment relates. 7. TERM OF RIGHTS. Rights granted on any Offering Date shall be exercisable -------------- upon the expiration of such period ("Offering Period"), as shall be determined by the Board when it authorizes the Offering, provided that such Offering Period shall in no event be longer than twenty-seven (27) months. 8. SHARES SUBJECT TO THE PLAN. No more than 150,000 Shares may be sold -------------------------- pursuant to rights granted under the Plan; provided, however, that -------- ------- appropriate adjustment shall be made in such number, in the number of Shares covered by outstanding rights granted hereunder, in the exercise price of the rights and in the maximum number of Shares which an employee may purchase (pursuant to paragraph 9 below) to give effect to any mergers, consolidations, reorganizations, recapitalizations, stock splits, stock dividends or other relevant changes in the capitalization of the Company occurring after the effective date of the Plan, provided that no fractional Shares shall be subject to a right and each right shall be adjusted downward to the nearest full Share. Any agreement of merger or consolidation will include provisions for protection of the then existing rights of participating employees under the Plan. Either authorized and unissued Shares or issued Shares heretofore or hereafter reacquired by the Company may be made subject to rights under the Plan. If for any reason any right under the Plan terminates in whole or in part, Shares subject to such terminated right may again be subjected to a right under the Plan. 9. LIMITATIONS ON GRANTS. --------------------- (a) No employee shall be granted a right hereunder if such employee, immediately after the right is granted, would own stock or rights to purchase stock possessing five percent (5%) or more of the total combined voting power or value of all classes of stock of the Company, or of any subsidiary, computed in accordance with Sections 423(b)(3) and 424(d) of the Code. (b) No employee shall be granted a right which permits his right to purchase shares under all employee stock purchase plans of the Company and its subsidiaries to accrue at a rate which exceeds twenty-five thousand dollars ($25,000) (or such other maximum as may be prescribed from time to time by the Code) of the fair market value of such Shares (determined at the time such right is granted) for each calendar year in which such right is outstanding at any time in accordance with the provisions of Section 423(b)(8) of the Code. 3 (c) No rights granted to participating employees under a single Offering shall cover more shares than may be purchased at an exercise price equal to 10% of the compensation payable to the employees during the Offering not taking into consideration any changes in the employee's rate of compensation after the date the employee elects to participate in the Offering, or such other maximum percentage of employees' compensation as determined by the Board from time to time. 10. LIMIT ON PARTICIPATION. Participation in an Offering shall be limited to ---------------------- eligible employees who elect to participate in such Offering in the manner and within the time limitation established by the Board when it authorizes the offering. 11. CANCELLATION OF ELECTION TO PARTICIPATE. An employee who has elected to --------------------------------------- participate in an Offering may, unless the employee has waived this cancellation right at the time of such election in a manner established by the Board, cancel such election as to all (but not part) of the rights granted under such Offering by giving written notice of such cancellation to the Company before the expiration of the Offering Period. Any amounts paid by the employee for the Shares or withheld for the purchase of Shares from the employee's compensation through payroll deductions shall be paid to the employee, without interest, upon such cancellation. 12. TERMINATION OF EMPLOYMENT. Upon termination of employment for any reason, ------------------------- including the death of the employee, before the date on which any rights granted under the Plan are exercisable, all such rights shall immediately terminate and amounts paid by the employee for the Shares or withheld for the purchase of Shares from the employee's compensation through payroll deductions shall be paid to the employee or to the employee's estate, without interest. 13. EMPLOYEE'S RIGHTS AS STOCKHOLDER. No participating employee shall have -------------------------------- any rights as a stockholder in the Shares covered by a right granted hereunder until such right has been exercised, full payment has been made for the corresponding Shares and a certificate representing such Shares has been issued. 14. RIGHTS NOT TRANSFERABLE. Rights under the Plan are not assignable or ----------------------- transferable by a participating employee and are exercisable only by the employee. 15. LIMITS ON SALE OF STOCK PURCHASED UNDER THE PLAN. The Plan is intended to ------------------------------------------------ provide shares of Common Stock for investment and not for resale. The Company does not, however, intend to restrict or influence any employee in the conduct of his/her own affairs. An employee may, therefore, sell Shares 4 purchased under the Plan at any time the employee chooses, subject to compliance with any applicable Federal or state securities laws; provided, however, that because of certain Federal tax requirements, each employee agrees, by entering the Plan, to promptly give the Company notice of any Shares disposed of within two years after the date of grant of the applicable right, indicating the number of such Shares disposed of. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK. 16. AMENDMENTS TO OR DISCONTINUANCE OF THE PLAN. The Board may at any time ------------------------------------------- terminate or amend this Plan without notice and without further action on the part of stockholders of the Company, provided: (a) that no such termination or amendment shall adversely affect the then existing rights of any participating employee; (b) that any such amendment which: (i) increases the number of Shares subject to the Plan (subject to the provisions of paragraph 7); (ii) changes the class of persons eligible to participate under the Plan; or (iii) materially increases the benefits accruing to participants under the Plan shall be subject to approval of the stockholders of the Company. 17. EFFECTIVE DATE AND APPROVALS. The Plan was adopted by the Board on April ---------------------------- 2, 1996 and approved by the stockholders of the Company on April 23, 1996. The Company's obligation to offer, sell and deliver its Shares under the Plan is subject to any governmental authority required in connection with the authorized issuance or sale of such Shares and is further subject to the Company receiving the opinion of its counsel that all applicable securities laws have been complied with. 5 18. TERM OF PLAN. No rights shall be granted under the Plan after April 1, ------------ 2006. Date approved by the Board of Directors of the Company: April 2, 1996 Date approved by the Stockholders of the Company: April 26, 1996 Increase Authorized Shares to 150,000 July 14, 1999 6 EX-23.1 4 CONSENT OF PRICEWATERHOUSECOOPERS LLP 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 February 18, 1999 appearing on page 22 of Innovasive Devices, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. PRICEWATERHOUSECOOPERS LLP Boston, Massachusetts July 21, 1999 1 -----END PRIVACY-ENHANCED MESSAGE-----