-----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, OM2BEHk2LVO9h0Ct5kQVDUjnyQumaIJ8vOkuA8+hRGUoz2+fMN4fl0gysI5UZWf+ uWPhXl6CZ2vrt5Y4vGNrSw== 0000912057-00-054109.txt : 20001220 0000912057-00-054109.hdr.sgml : 20001220 ACCESSION NUMBER: 0000912057-00-054109 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20001219 EFFECTIVENESS DATE: 20001219 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENZYME CORP CENTRAL INDEX KEY: 0000732485 STANDARD INDUSTRIAL CLASSIFICATION: BIOLOGICAL PRODUCTS (NO DIAGNOSTIC SUBSTANCES) [2836] IRS NUMBER: 061047163 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-52202 FILM NUMBER: 791969 BUSINESS ADDRESS: STREET 1: ONE KENDALL SQ CITY: CAMBRIDGE STATE: MA ZIP: 02139 BUSINESS PHONE: 6172527500 MAIL ADDRESS: STREET 1: ONE KENDALL SQUARE CITY: CAMBRIDGE STATE: MA ZIP: 02139 S-8 1 a2033579zs-8.txt S-8 As filed with the Securities and Exchange Commission on December 19, 2000 Registration No. 333-__________ ================================================================================ U.S. SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- GENZYME CORPORATION (Exact name of registrant as specified in its charter) MASSACHUSETTS 06-1047163 (State or other jurisdiction of (I.R.S. Employer Identification No.) incorporation) ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139 (Address of Principal Executive Offices) ---------------------- OPTIONS ASSUMED BY GENZYME CORPORATION IN CONNECTION WITH THE MERGER OF BIOMATRIX, INC. WITH AND INTO A WHOLLY OWNED SUBSIDIARY OF GENZYME CORPORATION. ORIGINALLY GRANTED UNDER THE BIOMATRIX, INC. 1994 STOCK OPTION PLAN AND NONEMPLOYEE DIRECTOR OPTION PLAN (Full Title of the Plan) ---------------------- PETER WIRTH, ESQ. Executive Vice President and Chief Legal Officer Genzyme Corporation One Kendall Square Cambridge, Massachusetts 02139 (617) 252-7500 (Name, address, including zip code, and telephone number, including area code, of agent for service) with copies to: PAUL M. KINSELLA, ESQ. Palmer & Dodge LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-0100 ---------------------- CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------------------------------------------------------- Proposed maximum Proposed maximum Title of each class of securities Amount to be offering price aggregate offering Amount of to be registered registered per share price registration fee ------------------------------------------------------------------------------------------------------------------- Genzyme Biosurgery Division Common 1,644,063 $40.00 (2) $27,500,903.13 (3) $7,261 Stock, $0.01 par value per share shares (1) -------------------------------------------------------------------------------------------------------------------
(1) Such shares are issuable upon the exercise of options assumed by the Registrant pursuant to an Agreement and Plan of Merger dated as of March 6, 2000, as amended, by and among the Registrant, Seagull Merger Corporation and Biomatrix, Inc. (2) Each holder of an option may purchase shares of Genzyme Biosurgery Division common stock pursuant to the terms of its option agreement. The proposed maximum offering price per share reflects the highest exercise price per share provided in the terms of the option agreements. (3) Estimated solely for the purpose of determining the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended, and based on the weighted average exercise price of the outstanding options. INTRODUCTORY STATEMENT This Registration Statement on Form S-8 is being filed to register 1,644,063 shares of Genzyme Biosurgery Division common stock, par value $0.01 per share, of Genzyme Corporation, a Massachusetts corporation ("Genzyme"), issuable upon the exercise of options assumed by Genzyme in connection with its acquisition of Biomatrix, Inc., a Delaware corporation ("Biomatrix"). These options were originally granted to employees and directors under Biomatrix' 1994 Stock Option Plan and its Nonemployee Director Option Plan. Pursuant to the Agreement and Plan of Merger dated as of March 6, 2000, as amended, by and among Genzyme, Biomatrix and Seagull Merger Corporation, Biomatrix merged with and into Seagull Merger Corporation whereupon Biomatrix became a wholly-owned subsidiary of Genzyme. Pursuant to the terms of the Agreement and Plan of Merger, following this merger, each option to purchase Biomatrix common stock is exercisable upon the same terms and conditions as provided in the Biomatrix plan under which the option was issued, except that the assumed options are exercisable for shares of Genzyme Biosurgery Division common stock. PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Genzyme with the Securities and Exchange Commission (the "SEC") are incorporated herein by reference: 1. Annual Report on Form 10-K for the year ended December 31, 1999, as amended by amendments on Form 10-K/A filed with the SEC on June 28, 2000 and October 17, 2000; 2. Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000, as amended on Form 10-Q/A filed with the SEC on October 17, 2000, June 30, 2000, as amended on Form 10-Q/A filed with the SEC on October 17, 2000, and September 30, 2000; 3. Current Reports on Form 8-K filed with the SEC on January 10, 2000, March 15, 2000, March 23, 2000, June 30, 2000, July 14, 2000, July 19, 2000, September 12, 2000, September 13, 2000, November 20, 2000, December 15, 2000 and December 19, 2000; 4. The description of Genzyme Biosurgery Division common stock contained in our Registration Statement on Form 8-A filed with the SEC on December 19, 2000, including any further amendment or report filed hereafter for the purpose of updating such description; and 5. The description of GBS stock purchase rights contained in our Registration Statement on Form 8-A filed with the SEC on December 19, 2000, including any further amendment or report filed hereafter for the purpose of updating such description. All documents filed after the date of this Registration Statement by Genzyme pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all shares of Genzyme Biosurgery Division common stock offered hereunder have been sold or which deregisters all shares of Genzyme Biosurgery Division common stock remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of the filing of such reports and documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 67 of chapter 156B of the Massachusetts Business Corporation Law grants Genzyme the power to indemnify any director, officer, employee or agent to whatever extent permitted by Genzyme's amended and restated articles of organization, by-laws or a vote adopted by the holders of a majority of the shares entitled to vote thereon, unless the proposed indemnitee has been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her actions were in the best interests of Genzyme or, to the extent that the matter for which indemnification is sought relates to service with respect to an employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan. Such indemnification may include payment by Genzyme of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he or she shall be adjudicated to be not entitled to indemnification under the statute. Article VI of Genzyme's by-laws provides that Genzyme shall, to the extent legally permissible, indemnify each person who may serve or who has served at any time as a director or officer of the corporation or of any of its subsidiaries, or who at the request of the corporation may serve or at any time has served as a director, officer or trustee of, or in a similar capacity with, another organization or an employee benefit plan, against all expenses and liabilities (including counsel fees, judgments, fines, excise taxes, penalties and amounts payable in settlements) reasonably incurred by or imposed upon such person in connection with any threatened, pending or completed action, suit or other proceeding, whether civil, criminal, administrative or investigative, in which he or she may become involved by reason of his or her serving or having served in such capacity (other than a proceeding voluntarily initiated by such person unless he or she is successful on the merits, the proceeding was authorized by the corporation or the proceeding seeks a declaratory judgment regarding his or her own conduct); PROVIDED that no indemnification shall be provided for any such person with respect to any matter as to which he or she shall have been finally adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his or her action was in the best interests of Genzyme or, to the extent such matter relates to service with respect to any employee benefit plan, in the best interests of the participants or beneficiaries of such employee benefit plan; and PROVIDED, FURTHER, that as to any matter disposed of by a compromise payment by such person, pursuant to a consent decree or otherwise, the payment and indemnification thereof have been approved by Genzyme, which approval shall not unreasonably be withheld, or by a court of competent jurisdiction. Such indemnification shall include payment by Genzyme of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he or she shall be adjudicated to be not entitled to indemnification under Article VI, which undertaking may be accepted without regard to the financial ability of such person to make repayment. The indemnification provided for in Article VI is a contract right inuring to the benefit of the directors, officers and others entitled to indemnification. In addition, the indemnification is expressly not exclusive of any other rights to which such director, officer or other person may be entitled by contract or otherwise under law, and inures to the benefit of the heirs, executors and administrators of such a person. Genzyme also has in place agreements with its officers and directors which affirm Genzyme's obligation to indemnify them to the fullest extent permitted by law and contain various procedural and other provisions which expand the protection afforded by Genzyme's by-laws. Section 13(b)(1 1/2) of chapter 156B of the Massachusetts Business Corporation Law provides that a corporation may, in its articles of organization, eliminate a director's personal liability to the corporation and its stockholders for monetary damages for breaches of fiduciary duty, except in circumstances involving (i) a breach of the director's duty of loyalty to the corporation or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) unauthorized distributions and loans to insiders, and (iv) transactions from which the director derived an improper personal benefit. Article VI.C.5. of Genzyme's Amended and Restated Articles of Organization provides that no director shall be personally liable to Genzyme or its stockholders for monetary damages for any breach of fiduciary duty as a director, except to the extent that such exculpation is not permitted under the Massachusetts Business Corporation Law as in effect when such liability is determined. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. See Exhibit Index immediately following signature page. ITEM 9. UNDERTAKINGS. (a) The undersigned 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: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this Registration Statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this registration statement; PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(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 by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this Registration Statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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. (b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial BONA FIDE offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions referred to in Item 6 hereof, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue. 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 of 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 Cambridge, Commonwealth of Massachusetts, as of December 19, 2000. GENZYME CORPORATION By: /s/ Michael S. Wyzga -------------------------------- Michael S. Wyzga Senior Vice President and Chief Financial Officer POWER OF ATTORNEY We, the undersigned officers and directors of Genzyme Corporation, hereby severally constitute and appoint Henri A. Termeer, Michael S. Wyzga, Evan M. Lebson and Peter Wirth, and each of them singly, our true and lawful attorneys-in-fact, with full power to them in any and all capacities, to sign any and all amendments to this registration statement on Form S-8 (including any post-effective amendments thereto), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorneys-in-fact may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and as of the dates indicated.
SIGNATURE TITLE DATE /s/ Henri A. Termeer Principal Executive December 19, 2000 - ----------------------------------------- Officer and Director Henri A. Termeer /s/ Michael S. Wyzga Principal Financial and December 19, 2000 - ----------------------------------------- Accounting Officer Michael S. Wyzga /s/ Constantine E. Anagnostopoulos Director December 19, 2000 - ----------------------------------------- Constantine E. Anagnostopoulos /s/ Douglas A. Berthiaume Director December 19, 2000 - ----------------------------------------- Douglas A. Berthiaume /s/ Henry E. Blair Director December 19, 2000 - ----------------------------------------- Henry E. Blair /s/ Robert J. Carpenter Director December 19, 2000 - ----------------------------------------- Robert J. Carpenter /s/ Charles L. Cooney Director December 19, 2000 - ----------------------------------------- Charles L. Cooney /s/ Victor J. Dzau Director December 19, 2000 - ----------------------------------------- Victor J. Dzau
II-6 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION ------ ------------ 4.1 Restated Articles of Organization of Genzyme, as amended. Filed as Exhibit 1 to Genzyme's Registration Statement on Form 8-A filed with the SEC on December 19, 2000, and incorporated herein by reference. 4.2 By-laws of Genzyme, as amended. Filed as Exhibit 3.2 to Genzyme's Quarterly Report on Form 10-Q for the quarter ended September 30, 1999, and incorporated herein by reference. 4.3 Indenture, dated as of May 22, 1998, between Genzyme and State Street Bank and Trust Company, as Trustee, including the form of Note. Filed as Exhibit 4.3 to Genzyme's Registration Statement on Form S-3 (File No. 333-59513) and incorporated herein by reference. 4.4 Registration Rights Agreement, dated as of May 19, 1998, among Genzyme, Credit Suisse First Boston Corporation, Goldman, Sachs & Co. and Cowen & Company. Filed as Exhibit 4.4 to Genzyme's Registration Statement on Form S-3 (File No. 333-59513) and incorporated herein by reference. 4.5 Purchase Agreement, dated as of May 19, 1998, among Genzyme, Credit Suisse First Boston Corporation, Goldman, Sachs & Co. and Cowen & Company. Filed as Exhibit 4.5 to Genzyme's Registration Statement on Form S-3 (File No. 333-59513) and incorporated herein by reference. 4.6 Second Amended and Restated Renewed Rights Agreement dated as of December 18, 2000 between Genzyme and American Stock Transfer and Trust Company. Filed as Exhibit 4 to Genzyme's Registration Statement on Form 8-A filed with the SEC on December 19, 2000, and incorporated herein by reference. 4.7 Warrant issued to Richard Warren, Ph.D. Filed as Exhibit 4 to the Current Report on Form 8-K of IG Laboratories, Inc. dated October 11, 1990 (File No. 0-18439), and incorporated herein by reference. 4.8 Form of Genzyme General Division Convertible Debenture dated August 29, 1998, including a schedule with respect thereto filed pursuant to Instruction 2 to Item 601 of Regulation S-K. Filed as Exhibit 4.15 to Genzyme's Registration Statement on Form S-3 (File No. 333-64901) and incorporated herein by reference. 4.9 Registration Rights Agreement dated as of August 29, 1997 by and among Genzyme and the entities listed on the signature pages thereto. Filed as Exhibit 10.8 to Genzyme's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997, and incorporated herein by reference. 4.10 Warrant Agreement between Genzyme and Comdisco, Inc. Filed as Exhibit 10.22 to a General Form for Registration on Form 10 of PharmaGenics, Inc. (File No. 0-20138), and incorporated herein by reference. 7 5 Opinion of Palmer & Dodge LLP. Filed herewith. 23.1 Consent of PricewaterhouseCoopers LLP, independent accountants to Genzyme. Filed herewith. 23.2 Consent of Palmer & Dodge LLP (contained in Exhibit 5 hereto). 24 Power of Attorney (included on signature page). 8 EX-5 2 a2033579zex-5.txt EXHIBIT 5 EXHIBIT 5 Palmer & Dodge LLP One Beacon Street Boston, Massachusetts 02108 TELEPHONE: (617) 573-0100 FACSIMILE: (617) 227-4420 December 19, 2000 Genzyme Corporation One Kendall Square Cambridge, Massachusetts 02139 We are rendering this opinion in connection with the Registration Statement on Form S-8 (the "Registration Statement") filed by Genzyme Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), on or about the date hereof. The Registration Statement relates to 1,644,063 shares of Genzyme Biosurgery Division common stock, $0.01 par value (the "Shares"), that are issuable upon the exercise of options assumed by the Company in connection with the merger of Biomatrix, Inc. ("Biomatrix") into a wholly-owned subsidiary of the Company pursuant to the terms of the Agreement and Plan of Merger dated as of March 6, 2000, as amended, by and among the Company, Biomatrix and Seagull Merger Corporation. These options were originally granted to employees and directors under Biomatrix' 1994 Stock Option Plan and Nonemployee Director Option Plan and are currently exercisable upon the same terms and conditions as provided in the Biomatrix plan under which the options were issued, except that the assumed options are exercisable for shares of Genzyme Biosurgery Division common stock (the "Exercise Terms"). We have acted as your counsel in connection with the preparation of the Registration Statement and are familiar with the proceedings taken by the Company in connection with authorization, issuance and sale of the Shares. We have examined all such documents as we consider necessary to enable us to render this opinion. Based upon the foregoing, we are of the opinion that when issued in accordance with the Exercise Terms, the Shares will be duly authorized, validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as a part of the Registration Statement. Very truly yours, /s/ Palmer & Dodge LLP Palmer & Dodge LLP EX-23.1 3 a2033579zex-23_1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Genzyme Corporation of: our report dated February 23, 2000, except for the information in Note A as to which the date is October 11, 2000, relating to the financial statements and financial statement schedules of Genzyme Corporation, which appears in Genzyme Corporation's Annual Report on Form 10-K for the year ended December 31, 1999, as amended; our reports dated February 23, 2000, relating to the financial statements and financial statement schedules of Genzyme General, Genzyme Molecular Oncology, Genzyme Surgical Products and Genzyme Tissue Repair, which appear in Genzyme Corporation's Annual Report on Form 10-K for the year ended December 31, 1999, as amended; and our report dated June 23, 2000 relating to the financial statements and supplemental schedule of the Genzyme Retirement Savings Plan, which appears in Genzyme Corporation's Form 10-K/A, as filed on June 28, 2000. /s/ PRICEWATERHOUSECOOPERS LLP PRICEWATERHOUSECOOPERS LLP Boston, Massachusetts December 14, 2000 -----END PRIVACY-ENHANCED MESSAGE-----