As filed with the Securities and Exchange Commission on July 28, 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
Curis, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 04-35051136
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(State or Other Jurisdiction (IRS Employer
of Incorporation Identification No.)
or Organization)
45 Moulton Street, Cambridge, Massachusetts 02138
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(Address of principal executive offices) (zip code)
2000 STOCK INCENTIVE PLAN
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(Full title of the Plan)
Doros Platika
President and Chief Executive Officer
Curis, Inc.
45 Moulton Street
Cambridge, Massachusetts 02138
(617) 876-0086
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(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
Copies to:
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Bruce A. Leicher, Esq. Steven D. Singer, Esq.
Curis, Inc. Hale and Dorr LLP
45 Moulton Street 60 State Street
Cambridge, Massachusetts 02138 Boston, Massachusetts 02109
(617) 876-0086 (617) 526-6000
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(Calculation of Registration Fee on following page)
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Amount to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Aggregate Registration Fee
Per Share (2) Offering Price (4)
(3)
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2000 STOCK INCENTIVE PLAN, 10,000,000 $17.20 $172,000,000 $45,408.00
Common Stock, $0.01 par
value per share
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__________________________
1. This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the plan being registered pursuant
to this Registration Statement by reason of any stock dividend, stock
split, recapitalization or any other similar transaction effected without
the receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of Common Stock.
2. Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) under the Securities Act of 1933. The proposed
maximum offering price per share was calculated as follows: (a)
$420,055,173.18, which represents 38,256,391, the number of shares of
Creative BioMolecules, Inc. common stock outstanding on July 24, 2000,
multiplied by $10.98, the average of the high and low sales prices for
Creative BioMolecules stock on the Nasdaq National Market on July 24, 2000,
plus (b) $3,254,182, which represents the book value as of March, 31 2000
of the outstanding capital stock of Reprogenesis, Inc., plus (c)
$121,800.38, which represents one-third of the aggregate par value as of
July 24, 2000 of the issued and outstanding capital stock of Ontogeny,
Inc., and (d) the sum of (a),(b) and (c) divided by 24,626,000, which
represents the number of shares of Curis, Inc. common stock that will be
issued and outstanding as a result of the merger by and among Creative
BioMolecules, Ontogeny, Reprogenesis and Curis anticipated for July 31,
2000.
3. The proposed aggregate offering price was calculated by multiplying the
proposed maximum offering price per share by the number of shares of Common
Stock covered by this Registration Statement.
4. Pursuant to Section 6(b) of the Securities Act, the registration fee
payable hereunder is equal to 0.0264 of one percent of $17,200,000, for a
total registration fee of $45,408.
INTRODUCTORY STATEMENT
The Registrant is filing this Registration Statement on Form S-8 relating
to its Common Stock, $.01 par value, issuable pursuant to the terms of the Curis
2000 Stock Incentive Plan (the "Plan").
Pursuant to an Agreement and Plan of Merger ("Merger Agreement") dated as
of February 14, 2000 among Creative BioMolecules, Inc., a Delaware corporation
("Creative"), Ontogeny, Inc., a Delaware corporation ("Ontogeny"), Reprogenesis,
Inc., a Texas corporation ("Reprogenesis"), and the Registrant, among other
things, (a) Creative, Ontogeny and Reprogenesis were merged with and into the
Registrant, (b) the stock incentive plans of Creative, Ontogeny and Reprogenesis
have been replaced by the Plan and (c) each outstanding option to purchase
shares of the common stock of Creative, Ontogeny or Reprogenesis, issued
pursuant to the respective stock incentive plans of Creative, Ontogeny and
Reprogenesis, has been converted into an option to purchase shares of Common
Stock of the Registrant in accordance with the respective conversion rates. With
respect to the converted options described in (c) above, except to the extent
made obsolete by operation of the merger, all other terms and conditions of the
converted options will be unchanged and remain in effect after the consummation
of the merger. The Registrant intends that the shares of its Common Stock
issuable upon the exercise of these converted options be covered by this
Registration Statement.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I of Form S-8 is included in documents
sent or given to participants in the plan specified on the cover page of this
Registration Statement, 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 following documents, which are on file with the Securities and Exchange
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or either (1) the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the
"Securities Act"), that contains audited financial statements for the
Registrant's latest fiscal year for which such statements have been filed or (2)
the Registrant's effective registration statement on Form 10 or 20-F filed under
the Exchange Act containing audited financial statements for the Registrant's
latest fiscal year.
(b) The Registrant's Registration Statement on Form S-4, as amended
(Registration No. 333-32446), filed with the Securities and Exchange Commission
on March 14, 2000.
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(c) 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 Registrant document
referred to in (a) above.
(d) The description of the Common Stock which is contained in a
registration statement 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 offered hereby have been
sold or which deregisters all shares then remaining unsold, shall be deemed to
be incorporated in this Registration Statement by reference 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. Not applicable.
Item 6. Indemnification of Directors and Officers.
Article SIXTH of the Registrant's Certificate of Incorporation provides
that no director of the Registrant shall be personally liable for any monetary
damages for any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
Article EIGHTH of the Registrant's Certificate of Incorporation provides
that the Registrant shall indemnify each director and officer who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Registrant), by
reason of the fact that such director or officer is or was, or has agreed to
become, a director or officer of the Registrant, or is or was serving or has
agreed to serve, at the request of the Registrant, as a director, officer or
trustee of or in a similar capacity with, another corporation (including any
partially or wholly owned subsidiary of the Registrant), partnership, joint
venture, trust or other enterprise (including any employee benefit plan),
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred in connection with any such
action, suit or proceeding to the maximum extent permitted by the Delaware
General Corporation Law.
Article EIGHTH of the Registrant's Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have 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, in any criminal proceeding, if such person
had no reasonable cause to believe this conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation
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no indemnification shall be made with respect to any matter as to which such
person shall have been adjudged to be liable to the corporation unless and only
to the extent that the adjudicating court determines that such indemnification
is proper under the circumstances.
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:
(a) 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;
(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.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
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 (a)(i) and (a)(ii) do not apply if the
Registration Statement is on Form S-3 or Form S-8, and 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 Section 15(d) of the Exchange Act that are
incorporated by reference in the Registration Statement.
(b) 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
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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.
(c) 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. That for the purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual report pursuant to
Section 13(a) or Section 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 in 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 of 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 of 1933, as amended,
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 the
28th day of July, 2000.
CURIS, INC.
By: /s/ Doros Platika
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Doros Platika
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Curis, Inc. hereby severally
constitute and appoint Doros Platika, George A. Eldridge and Bruce A. Leicher,
and each of them acting singly, our true and lawful attorneys with full power to
either of them 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 Curis, 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 of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the date indicated.
Signature Title Date
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/s/ Doros Platika
- ----------------------- Chairman of the Board and July 28, 2000
Doros Platika Chief Executive Officer
(Principal Executive Officer)
/s/ George A. Eldridge
- ----------------------- Chief Financial Officer July 28, 2000
George A. Eldridge (Principal Financial and
Accounting Officer)
/s/ James R. McNab, Jr.
- ----------------------- Director July 28, 2000
James R. McNab, Jr.
/s/ James R. Tobin
- ----------------------- Director July 28, 2000
James R. Tobin
/s/ Douglas A. Melton
- ----------------------- Director July 28, 2000
Douglas A. Melton
/s/ Michael Rosenblatt
- ----------------------- Director July 28, 2000
Michael Rosenblatt
/s/ Ruth B. Kunath
- ----------------------- Director July 28, 2000
Ruth B. Kunath
/s/ Martyn D. Greenacre
- ----------------------- Director July 28, 2000
Martyn D. Greenacre
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Exhibit Index
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Exhibit
Number Description
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4.1 Amended and Restated Certificate of Incorporation of the Registrant.*
4.2 Amended and Restated By-Laws of the Registrant.*
5 Opinion of Hale and Dorr LLP regarding legality of securities being
issued.
23.1 Consent of Hale and Dorr LLP (included in Exhibit 5).
23.2 Consent of Arthur Andersen LLP.
23.3 Consent of Deloitte & Touche LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
24 Power of Attorney (included on the signature page of this Registration
Statement).
*Incorporated by reference to the Company's Registration Statement on Form
S-4, as amended, (File No. 333-32446) filed March 14, 2000.