-----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, PPJ9pa7zGT544wL+J8ar+8mIKCiJBrdR8Sl6eLfXUacOHJH7yUTZjgaegn4Pd3p1 Q3leABizUVkp1zS1O3GnsA== 0000950135-97-005061.txt : 19971217 0000950135-97-005061.hdr.sgml : 19971217 ACCESSION NUMBER: 0000950135-97-005061 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971216 EFFECTIVENESS DATE: 19971216 SROS: NASD 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: 333-42371 FILM NUMBER: 97739222 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 GENZYME CORPORATION 1 As filed with the Securities and Exchange Commission on December 16, 1997 REGISTRATION NO. 333- __________ ================================================================================ 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 (I.R.S. Employer of incorporation) Identification No.) ONE KENDALL SQUARE, CAMBRIDGE, MASSACHUSETTS 02139 (Address of Principal Executive Offices) 1997 EQUITY INCENTIVE PLAN (Full Title of the Plan) PETER WIRTH, ESQ. Genzyme Corporation One Kendall Square Cambridge, Massachusetts 02139 (617) 252-7500 (Name, address and telephone number of agent for service) with copies to: MAUREEN P. MANNING, ESQ. Palmer & Dodge LLP One Beacon Street Boston, Massachusetts 02108 (617) 573-0100 ------------------
CALCULATION OF REGISTRATION FEE - --------------------------------------------------------------------------------------------------------- Proposed Proposed maximum Title of each class of Amount to be maximum offering aggregate offering Amount of securities to be registered registered price per share price registration fee - --------------------------------------------------------------------------------------------------------- Genzyme General Division 4,000,000 shares $27.00 $108,000,000 $31,860.00 Common Stock, $0.01 par value - --------------------------------------------------------------------------------------------------------- Genzyme Tissue Repair Division 2,000,000 shares $ 7.8125 $ 15,625,000 $ 4,609.38 Common Stock, $0.01 par value - --------------------------------------------------------------------------------------------------------- Genzyme Molecular Oncology 2,000,000 shares $ 4.72(1) $ 9,440,000 $ 2,784.80 Division Common Stock, $0.01 par value - ---------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of determining the registration fee and computed pursuant to Rule 457(h)(1) of the Securities Act of 1933, as amended. Pursuant to Rule 457(h)(1), the maximum offering price per share of the Genzyme Molecular Oncology Division Common Stock (the "GMO Stock") registered hereby is equal to the book value of such shares computed as of October 31, 1997. 2 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") (File No. 0-14680) are incorporated herein by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1996, as amended by Form 10-K/A filed with the Commission on June 30, 1997. (b) The Registrant's Quarterly Reports on Form 10-Q for the quarter ended March 31, 1997, filed with the Commission on May 15, 1997, the quarter ended June 30, 1997, as amended by Form 10-Q/A filed with the Commission on September 17, 1997 and the quarter ended September 30, 1997, filed with the Commission on November 14, 1997. (c) The Registrant's Current Reports on Form 8-K filed with the Commission on February 4, 1997, April 1, 1997 and June 30, 1997. (d) The description of the Genzyme General Division Common Stock (the "GGD Stock"), Genzyme Tissue Repair Division Common Stock (the "GTR Stock"), GMO Stock, GGD Stock Purchase Rights, GTR Stock Purchase Rights and GMO Stock Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on June 18, 1997. All documents filed after the date of this Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment that indicates that all shares of GGD Stock, GTR Stock or GMO Stock offered hereunder have been sold or which deregisters all shares of GGD Stock, GTR Stock or GMO 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 the Registrant the power to indemnify any director, officer, employee or agent to whatever extent permitted by the Registrant's Restated Articles of Organization, By-Laws or a vote adopted by the holders of a majority of the shares entitled to vote thereon, if such indemnitee acted (a) in good faith in the reasonable belief that his action was in the best interests of the corporation or (b) 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 the Registrant of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon 2 3 receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under the statute. Article VI of the Registrant's By-Laws provides that the Registrant 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 may become involved by reason of his serving or having served in such capacity (other than a proceeding voluntarily initiated by such person unless he is successful on the merits, the proceeding was authorized by the corporation or the proceeding seeks a declaratory judgment regarding his own conduct). Such indemnification shall include payment by the Registrant 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 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. The Registrant also has in place agreements with certain officers and directors which affirm the Registrant'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 the Registrant's By-Laws. Section 13(b)(1/2) of chapter 156B of the Massachusetts Business Corporation Law provides that a corporation may, in its Articles of Organization, eliminate the directors' 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. Section VI.C.5 of the Registrant's Restated Articles of Organization provides that no director shall be personally liable to the corporation 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 the signature page. 3 4 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. 4 5 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 Cambridge, Commonwealth of Massachusetts, on this 10th day of November, 1997. GENZYME CORPORATION By: /s/ David J. McLachlan --------------------------------- David J. McLachlan Executive Vice President, Finance and Chief Financial Officer POWER OF ATTORNEY We, the undersigned officers and directors of Genzyme Corporation, hereby severally constitute and appoint Henri A. Termeer, David J. McLachlan, 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 on the dates indicated:
Signature Title Date --------- ----- ---- /s/ Henri A. Termeer President and Director November 24, 1997 - ---------------------------------- (Principal Executive Henri A. Termeer Officer) /s/ David J. McLachlan Executive Vice President, November 10, 1997 - ---------------------------------- Finance and Chief Financial David J. McLachlan Officer (Principal Financial and Accounting Officer) /s/ Constantine E. Anagnostopoulos Director November 24, 1997 - ---------------------------------- Constantine E. Anagnostopoulos /s/ Douglas A. Berthiaume Director November 24, 1997 - ---------------------------------- Douglas A. Berthiaume
5 6 /s/ Henry E. Blair Director November 24, 1997 - ------------------------------- Henry E. Blair /s/ Robert J. Carpenter Director November 24, 1997 - ------------------------------- Robert J. Carpenter /s/ Charles L. Cooney Director November 24, 1997 - ------------------------------- Charles L. Cooney /s/ Henry R. Lewis Director November 15, 1997 - ------------------------------- Henry R. Lewis 6 7 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION 5 Opinion of Palmer & Dodge LLP as to the legality of the securities registered hereunder. 23.1 Consent of Coopers & Lybrand L.L.P., independent accountants. 23.2 Consent of Arthur Anderson LLP, independent accountants to PharmaGenics, Inc. 23.3 Consent of Palmer & Dodge LLP (contained in Exhibit 5). 7 EX-5 2 OPINION OF PALMER & DODGE LLP 1 Exhibit 5 PALMER & DODGE LLP One Beacon Street Boston, Massachusetts 02018 Telephone: (617) 573-0100 Facsimile: (617) 227-4420 December 11, 1997 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 4,000,000 shares of Genzyme General Division Common Stock, 2,000,000 shares of Genzyme Tissue Repair Division Common Stock and 2,000,000 shares of Genzyme Molecular Oncology Division Common Stock (collectively, the "Shares"), offered pursuant to the provisions of the Company's 1997 Equity Incentive Plan (the "Plan"). 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 the Shares have been duly authorized and when issued in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, /s/ Palmer & Dodge LLP EX-23.1 3 CONSENT OF COOPERS & LYBRAND L.L.P. 1 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement on Form S-8 of Genzyme Corporation for its 1997 Equity Incentive Plan of our reports dated February 27, 1997 on our audits of the consolidated financial statements and financial statement schedule of Genzyme Corporation, the combined financial statements and financial statement schedule of Genzyme General Division and the combined financial statements and financial statement schedule of Genzyme Tissue Repair Division as of December 31, 1995 and 1996 and for each of the three years in the period ended December 31, 1996, which reports are included in Genzyme Corporation's 1996 Annual Report on Form 10-K. We also consent to the incorporation by reference in this Registration Statement on Form S-8 of Genzyme Corporation of our report dated April 7, 1997 on our audit of the combined financial statements of Genzyme Molecular Oncology Division as of December 31, 1995 and 1996 and for the period from December 1, 1994 (Date of Inception) through December 31, 1994, for the years ended December 31, 1995 and 1996 and cumulative for the period from December 1, 1994 (Date of Inception) through December 31, 1996, which report is included in Genzyme Corporation's Current Report on Form 8-K filed with the Securities and Exchange Commission on June 30, 1997. /s/ Coopers & Lybrand L.L.P. ---------------------------------- Coopers & Lybrand L.L.P. Boston, Massachusetts December 15, 1997 EX-23.2 4 CONSENT OF ARTHUR ANDERSEN LLP 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 March 3, 1997 relating to the financial statements of PharmaGenics, Inc. included in Genzyme Corporation's Form 8-K dated June 18, 1997. /s/ Arthur Andersen LLP --------------------------------- Arthur Andersen LLP Roseland, New Jersey December 11, 1997 -----END PRIVACY-ENHANCED MESSAGE-----