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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Transition Systems, Inc.
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(Exact name of issuer as specified in its charter)
Massachusetts 04-2887598
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Boston Place, Boston, Massachusetts 02108
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(Address of principal executive offices) (Zip Code)
TRANSITION SYSTEMS, INC.
AMENDED AND RESTATED 1995 INCENTIVE AND NON-STATUTORY STOCK OPTION PLAN
(Full title of the plan)
Robert F. Raco
President & Chief Executive Officer
Transition Systems, Inc.
One Boston Place
Boston, Massachusetts 02108
(617) 723-4222
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(Name and address, including zip code, and
telephone number, including area code, of agent for service)
WITH A COPY TO:
Donald R. Ware, Esquire
Robert W. Sweet, Jr., Esquire
Foley, Hoag & Eliot LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 832-1000
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CALCULATION OF REGISTRATION FEE
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Proposed
Title of Proposed Maximum
Securities Amount Maximum Aggregate Amount of
to be to be Offering Price Offering Registration
Registered Registered Per Share Price Fee
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Common Stock 1,354,071 $25.88(1) $35,043,357(1) $12,083.92(1)
(par value $0.01 shares
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Common Stock 4,063,854 $ 2.67(2) $10,850,490(2) $ 3,741.55(2)
(par value $0.01 shares
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Totals 5,417,925 $45,893,847 $15,825.47
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<FN>
(1) Estimated pursuant to Rules 457 (c) and (h) based on the average of
the high and low prices of the Common Stock as reported on the National
Association of Securities Dealers Automated Quotation National Market System on
August 14, 1996.
(2) For shares issuable pursuant to stock options outstanding at August
14, 1996, calculated pursuant to Rule 457(h) based on the exercise price of such
options.
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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") are incorporated in this Registration Statement by
reference:
(a) the Prospectus dated April 18, 1996 of Transition Systems, Inc.
(the "Company" or the "Registrant") included in the Company's Registration
Statement on Form S-1, File No. 333-01758, as declared effective by the
Commission on April 17, 1996;
(b) the description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed with the Commission on April 10, 1996
under Section 12 of the Securities Exchange Act of 1934, including any amendment
or report filed for the purpose of updating such description;
(c) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period ended March 30, 1996, as filed with the Commission on May 31, 1996; and
(d) the Company's Quarterly Report on Form 10-Q for the Quarterly
Period ended June 30, 1996, as filed with the Commission on August 9, 1996.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be 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 validity of the securities registered hereby is being passed upon
for the Company by Foley, Hoag & Eliot LLP, Boston, Massachusetts.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 6 of the Company's Amended and Restated Articles of
Organization provides that a director shall not have personal liability to the
Company or its stockholders for monetary damages arising out of the director's
breach of fiduciary duty as a director of the Company, to the maximum extent
permitted by Massachusetts Law. Section 13(b)(1 1/2) of Chapter 156B of the
Massachusetts Business Corporation Law provides that the articles of
organization of a corporation may state a provision eliminating or limiting the
personal liability of a director to a corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided, however,
that such provision shall not eliminate or limit the liability of a director
(i) for any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts of omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) under sections 61 or
62 of the Massachusetts Business Corporation Law dealing with liability for
unauthorized distributions and loans to insiders, respectively, or (iv) for any
transaction from which the director derived an improper personal benefit.
The Company's Amended and Restated By-Laws further provide that the
Company shall, to the fullest extent authorized by the Massachusetts Business
Corporation Law, indemnify each person who is, or shall have been, a director or
officer of the Company or who is or was a director or employee of the Company
and is serving, or shall have served, at the request of the Company, as director
or officer of another organization or in any capacity with respect to any
employee benefit plan of the Company, against all liabilities and expenses
(including judgments, fines, penalties, amounts paid or to be paid in
settlement, and reasonable attorneys' fees) imposed upon or incurred by any such
person in connection with, or arising out of, the defense or disposition of any
action, suit or other proceeding whether civil or criminal, in which they may be
involved by reason of being or having been such a director or officer or as a
result of service with respect to any such employee benefit plan.
Section 67 of Chapter 156B of the Massachusetts General Laws authorizes
a corporation to indemnify its directors, officers, employees and other agents
unless such person shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that such action was in the best
interests of the corporation or, to the extent such matter related to service
with respect to an employee benefit plan, in the best
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interests of the participants or beneficiaries of such employee benefit plan.
The effect of these provisions would be to permit indemnification by
the Company for, among other liabilities, liabilities arising out of the
Securities Act of 1933, as amended.
Section 67 of the Massachusetts Business Corporation Law also affords a
Massachusetts corporation the power to obtain insurance on behalf of its
directors and officers against liabilities incurred by them in those capacities.
The Company has procured a directors' and officers' liability and company
reimbursement liability insurance policy that (i) insures directors and officers
of the Company against losses (above a deductible amount) arising from certain
claims made against them by reason of certain acts done or attempted by such
directors or officers and (ii) insures the Company against losses (above a
deductible amount) arising from any such claims, but only if the Company is
required or permitted to indemnify such directors or officers for such losses
under statutory or common law or under provisions of the Company's Amended and
Restated Articles of Organization or Amended and Restated By-Laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Specimen certificate for the Common Stock (included as Exhibit 4.1 to
the Company's Registration Statement on Form S-1, Registration Number
333-01758, and incorporated herein by reference)
4.2 Transition Systems, Inc. Amended and Restated 1995 Incentive and Non-
Statutory Stock Option Plan
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature page)
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ITEM 9. UNDERTAKINGS.
1. 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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.
2. The undersigned 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 of 1933;
(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;
(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 2 (a)(1)(i) and 2 (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 herein.
(b) 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 herein, and the
offering of
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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.
3. 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 foregoing provisions, 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.
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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 Boston, Massachusetts, on this 16th day of August,
1996.
TRANSITION SYSTEMS, INC.
By: /s/ Robert F. Raco
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Robert F. Raco
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints Robert E. Kinney and Paula J. Malzone,
and each of them, true and lawful attorneys-in-fact and agents with full power
of substitution, for and in 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 which
they, or any of them, may deem necessary or advisable to be done in connection
with this Registration Statement, as fully to all intents and purposes as he or
she might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents or any of them, or any substitute or substitutes
for any or all of them, may lawfully 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 by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ Robert F. Raco Chairman of the Board, August 16, 1996
- ------------------------ President and Chief
Robert F. Raco Executive Officer
(Principal Executive
Officer)
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Signature Title Date
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/s/ Robert E. Kinney Chief Financial Officer August 16, 1996
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Robert E. Kinney
/s/ Paula J. Malzone Treasurer August 16, 1996
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Paula J. Malzone
/s/ Patrick T. Hackett Director August 14, 1996
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Patrick T. Hackett
/s/ Robert S. Hillas Director August 16, 1996
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Robert S. Hillas
/s/ Allen F. Wise Director August 14, 1996
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Allen F. Wise
/s/ Peter Van Etten Director August 14, 1996
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Peter Van Etten
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EXHIBIT INDEX
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Exhibit
No. Description Page
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4.1 Specimen certificate for the Common Stock
(included as Exhibit 4.1 to the Company's
Registration Statement on Form S-1, Registration
Number 333-01758, and incorporated herein by
reference)
4.2 Transition Systems, Inc. Amended and Restated 1995
Incentive and Non-Statutory Stock Option Plan
5.1 Opinion of Counsel
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (contained on the signature
page)