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
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(I.R.S. employer identification no.)
MASSACHUSETTS
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(State or other jurisdiction of incorporation or organization)
734 FOREST STREET, MARLBOROUGH, MA 01752-3032
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(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
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(Name and address of agent for service)
(508) 460-8229
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(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.
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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,
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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.
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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
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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.
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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
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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
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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).
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