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As filed with the Securities and Exchange Commission on June 4, 1996
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
GYNECARE, INC.
(Exact name of Registrant as specified in its charter)
Delaware 94-3197941
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
235 Constitution Drive
Menlo Park, California 94025
(Address, including zip code, of Registrant's principal executive offices)
1994 STOCK OPTION PLAN
1995 DIRECTOR OPTION PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
WILLIAM M. HUNTER
President and Chief Executive Officer
GYNECARE, INC.
235 Constitution Drive
Menlo Park, California 94025
(415) 614-2500
(Name, address, and telephone number, including area code, of agent for service)
COPY TO:
ROBERT T. CLARKSON, ESQ.
WILSON, SONSINI, GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304
(415) 493-9300
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
AMOUNT OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
<S> <C> <C> <C> <C>
Common Stock issuable upon exercise of
options previously granted under 1994
Stock Option Plan 456,977 $10.125/sh $1,046,758 $ 361
Common Stock issuable upon exercise of
options to be granted under 1994 Stock
Option Plan 311,383 $10.19/sh(1) $3,172,993 $1,094
Common Stock issuable under 1995 Director
Stock Option Plan 100,000 $10.19/sh(1) $1,019,000 $ 351
Common Stock issuable under 1995 Employee
Stock Purchase Plan 150,000 $ 8.66/sh(1) $1,299,000 $ 448
Total shares of Common Stock 1,018,360 $ 6,537,751 $2,254
</TABLE>
(1) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the registration fee. Based upon the average of the high and
low prices per share of the Common Stock on the Nasdaq National Market on
May 28, 1996.
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GYNECARE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
There are hereby incorporated by reference into this Registration Statement
and into the Prospectus relating to this Registration Statement pursuant to
Rule 428 the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission"):
1. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated November 9, 1995 filed
pursuant to Section 12 of the Securities Exchange Act of 1934.
2. The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995.
3. The Registrant's Quarterly Report on Form 10-Q for the period ended
March 31, 1996.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date
hereof, and 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 herein
and to be part hereof from the date of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES
Not Applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the issuance of the shares of Common Stock being
registered hereby are being passed upon for the Registrant by Wilson, Sonsini,
Goodrich & Rosati, Professional Corporation, Palo Alto, California. Certain
members of Wilson, Sonsini, Goodrich & Rosati and investment partnerships of
which such persons are partners beneficially own 7,535 shares of the
Registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation and Bylaws contain
certain provisions relating to the limitation of liability and indemnification
of directors and officers. The Registrant's Certificate of Incorporation
provides that directors of the Registrant may not be held personally liable to
the Registrant or its stockholders for monetary damages for a breach of
fiduciary duty, except for liability (i) for any breach of the director's duty
of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law, relating
to prohibited dividends, distributions and repurchases or redemptions of stock,
or (iv) for any transaction from which the director derives an improper benefit.
However, such limitation does not limit the availability of non-monetary relief
in any action or proceeding against a director. In addition, the Registrant's
Certificate of Incorporation and Bylaws provide that the Registrant shall
indemnify its directors and officers to the fullest extent authorized by
Delaware law.
The Registrant has entered into agreements to indemnify its directors
and executive officers, in addition to indemnification provided for in the
Registrant's Bylaws. These agreements, among other things, indemnify the
Registrant's directors and executive officers for certain expenses including
attorneys' fees, judgments, fines and settlement amounts incurred by any such
person in any action or proceeding, including any action by or in the right of
the Registrant arising out of such person's services as a director or executive
officer of the Registrant, a subsidiary of the Registrant or any other company
or enterprise to which the person provides services at the request of the
Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
II-2
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Item 8. EXHIBITS
Exhibit
Number Document
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4.1* 1994 Stock Option Plan
4.2* 1995 Director Option Plan
4.3* 1995 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Coopers & Lybrand, L.L.P., Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-5).
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*Filed as an exhibit to Registration Statement on Form SB-2 (File No. 33-97910-
LA), as filed with the SEC on November 7, 1995.
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 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, 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
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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
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(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the items described in Item 6
of Part II of this Registration Statement, 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 Securities Act of
1933 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 Securities
Act of 1933 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,
Gynecare, Inc., 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 Menlo Park, State of California, on the 31st day
of May, 1996.
GYNECARE, INC.
By: /s/ William M. Hunter
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William M. Hunter, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William M. Hunter and Malcolm M.
Farnsworth, Jr. and each of them, acting individually, as his attorney-in-fact,
with full power of substitution, for him and in any and all capacities, to sign
any and all amendments to this Registration Statement (including post-effective
amendments) and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorney to any and all amendments to the Registration Statement.
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
/s/ William M. Hunter President, Chief Executive Officer May 31, 1996
- ------------------------------ and Director (Principal Executive
William M. Hunter Officer)
/s/ Malcolm M. Farnsworth, Jr. Vice President and Chief Financial May 31, 1996
- ------------------------------ Officer (Principal Financial and
Malcolm M. Farnsworth, Jr. Accounting Officer)
/s/ Elizabeth B. Connell Director May 31, 1996
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Elizabeth B. Connell, M.D.
/s/ David L. Douglass Director May 31, 1996
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David L. Douglass
/s/ A. Grant Heidrich Director May 31, 1996
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A. Grant Heidrich
/s/ Alan Levy Director May 31, 1996
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Alan Levy, Ph.D.
/s/ Mary Lake Polan Director May 31, 1996
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Mary Lake Polan, M.D., Ph. D.
/s/ F. Thomas Watkins, III Director May 31, 1996
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F. Thomas Watkins, III
II-5
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GYNECARE, INC.
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Description
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4.1* 1994 Stock Option Plan
4.2* 1995 Director Option Plan
4.3* 1995 Employee Stock Purchase Plan
5.1 Opinion of counsel as to legality of securities
being registered
23.1 Consent of Coopers & Lybrand, L.L.P., Independent
Accountants
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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* Filed as an exhibit to Registration Statement on Form SB-2
(File No. 33-97910-LA), as filed with the SEC on November 7, 1995.
S-1
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EXHIBIT 5.1
May 31, 1996
Gynecare, Inc.
235 Constitution Drive
Menlo Park, California 94025
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined (i) the Registration Statement on Form S-8 (the "Registration
Statement") to be filed by Gynecare, Inc., a Delaware corporation (the "Company"
or "you"), with the Securities and Exchange Commission on or about May 31, 1996
in connection with the registration under the Securities Act of 1933, as amended
(the "Act"), of an aggregate of: (A) 768,360 shares of your Common Stock, no par
value (the "Common Stock"), reserved for issuance under options granted or to be
granted pursuant to the Company's 1994 Stock Option Plan (the "Option Plan"),
(B) 100,000 shares of Common Stock reserved for issuance under the Company's
1995 Director Option Plan (the "Director Plan"), (C) 150,000 shares of Common
Stock reserved for issuance under the Company's 1995 Employee Stock Purchase
Plan (the"Purchase Plan") (all such shares of Common Stock being hereinafter
referred to as the "Shares"), and (ii) the Prospectuses to be dated on or about
May 31, 1996 that relate to the Option Plan, Director Plan and Purchase Plan and
to such Registration Statement pursuant to Rule 428(a)(1) promulgated under the
Act (the "Prospectuses"). As your legal counsel, we have reviewed the actions
proposed to be taken by you in connection with the proposed sale and issuance of
the Shares by the Company under the Option Plan, Director Plan and Purchase
Plan.
It is our opinion that, upon completion of the actions being taken, or
contemplated by us as your counsel to be taken, by you prior to the issuance of
the Shares pursuant to the Registration Statement, the Prospectuses and the
Option Plan, Director Plan and Purchase Plan, the Shares will be legally and
validly issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement, the Prospectuses and any subsequent amendment thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Gynecare, Inc. on Form S-8 of our report dated January 23, 1996, except for Note
14 for which the date is February 29, 1996, on our audits of the financial
statements of Gynecare, Inc. as of December 31, 1995 and December 31, 1994, and
for the year ended December 31, 1995 and the period from March 8, 1994 (Date of
Inception) through December 31, 1994, which report is included in the annual
report on Form 10-K.
COOPERS & LYBRAND LLP
San Jose, California
May 30, 1996
