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As filed with the Securities and Exchange Commission on June 30, 1997
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
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ENDOCARE, INC.
(Exact name of registrant as specified in its charter)
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DELAWARE 33-0618093
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
7 Studebaker
Irvine, California 92618
(714) 595-4770
(Address of Principal Executive Offices)
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ENDOCARE, INC.
1995 STOCK PLAN
1995 DIRECTOR OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
------------------------
PAUL W. MIKUS
President
Endocare, Inc.
7 Studebaker
Irvine, California 92618
(714) 595-4770
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
------------------------
COPIES TO:
Elaine R. Levin, Esq.
Riordan & McKinzie
695 Town Center Drive, Suite 1500
Costa Mesa, California 92626
(714) 433-2900
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Proposed Proposed
Title of Each Class of Amount Maximum Maximum Amount of
Securities to be to be Offering Price Aggregate Registration
Registered Registered Per Share(1) Offering Price Fee
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 2,400,000 $3.56 $8,544,000 $2,590
===================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Section 6 and Rule 457, based on the average of the high and low
sales prices of the Company's Common Stock, $3-5/8 and $3-1/2, respectively,
on June 26, 1997 as reported on the Nasdaq SmallCap Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed by Endocare, Inc. (the
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference into this Registration Statement:
(1) The Annual Report of the Company on Form 10-K (File No. 0-27212)
for its fiscal year ended December 31, 1996, as filed with the Commission on
February 21, 1997, as amended, by Amendment No. 1 on Form 10-K/A for the fiscal
year ended December 31, 1996, as filed with the Commission on March 4, 1997, and
by Amendment No. 2 on Form 10-K/A for the fiscal year ended December 31, 1996,
as filed with the Commission on May 30, 1997.
(2) The description of the Common Stock contained in a registration
statement on the Company's Form 10-SB/A Amendment No. 2, as filed with the
Commission on January 5, 1996.
(3) The definitive Proxy Statement of the Company, as filed with the
Commission on March 6, 1997.
(4) The Quarterly Report of the Company on Form 10-Q (File No. 0-27212)
for the quarter ended March 31, 1997, as filed with the Commission on May 20,
1997.
(5) All documents subsequently filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act of 1934, as
amended, 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 in this
Registration Statement and to be part thereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein, modified or superseded such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby has been
passed upon for the Company by Riordan & McKinzie, a Professional Law
Corporation.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware Corporation Law provides that a Delaware
corporation may indemnify any person against expenses, judgments, fines and
settlements actually and reasonably incurred by any such person in connection
with a threatened, pending or completed action, suit or proceeding in which he
is involved by reason of the fact that he is or was a director, officer,
employee or agent of such corporation, provided that (i) he acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of the corporation and (ii) with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was unlawful. If
the action or suit is by or in the name of the corporation, the corporation may
indemnify any such person against expenses actually and reasonably incurred by
him in connection with the defense or settlement of such action or suit if he
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect to any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation for negligence or
misconduct in the performance of his duty to the corporation, unless and only to
the extent that the Delaware Court of Chancery
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or the court in which the action or suit is brought determines upon application
that, despite the adjudication of liability but in view of all of the
circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses as the court deems proper.
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by the Delaware Corporation Law, no director of the Company
shall be personally liable to the Company or its stockholders for monetary
damages for breach of fiduciary duty as a director. The Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Company's Bylaws provide that the Company shall indemnify to the
full extent authorized by law each of its directors and officers against
expenses incurred in connection with any proceeding arising by reason of the
fact that such person is or was an agent of the corporation.
The Company has entered into indemnification agreements with its
directors and certain of its officers.
ITEM 7. EXEMPTIONS FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1++ Specimen Certificate of the Company's Common Stock.
5.1 Opinion of Riordan & McKinzie, a Professional Law Corporation.
23.1 Consent of Riordan & McKinzie, a Professional Law Corporation -
included in Exhibit 5.1.
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included on page II-4).
- --------------
++ Previously filed with the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated herein by reference.
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 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;
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provided however, that paragraphs (i) and (ii) above do not apply if 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
Securities Exchange Act of 1934 that are incorporated by reference 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
Securities Exchange Act of 1934 (and, were 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 therein, 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 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 Irvine, State of California, on June 29, 1997.
ENDOCARE, INC.
By: /s/ PAUL W. MIKUS
--------------------------
Paul W. Mikus
Chief Executive Officer,
President, Chief Financial
Officer and Treasurer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Paul W. Mikus his true and lawful
attorney-in-fact and agent with full power of substitution and resubstitution,
for each person and in his name, place and stead, in any and all capacities, to
sign any and all amendments to this Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent, full power and authority to do and perform each and every act and
thing requisite or necessary to be done 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 attorney-in-fact and agent, or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ PAUL W. MIKUS Chief Executive Officer, President, Chief June 29, 1997
- ---------------------------------------- Financial Officer, Treasurer and Director
Paul W. Mikus (Principal Executive Officer, Principal Financial
Officer and Principal Accounting Officer)
/s/ PETER F. BERNARDONI Director June 29, 1997
- ----------------------------------------
Peter F. Bernardoni
/s/ KEVIN MARINELLI Director June 29, 1997
- ----------------------------------------
Kevin Marinelli
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Sequentially
Exhibit Description Numbered
- ------- ----------- ------------
<S> <C> <C>
4.1++ Specimen Certificate of the Company's Common Stock
5.1 Opinion of Riordan & McKinzie, a Professional Law Corporation
23.1 Consent of Riordan & McKinzie, a Professional Law Corporation
- included in Exhibit 5.1
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on page II-4)
- ---------------
++ Previously filed with the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, and incorporated herein by reference.
</TABLE>
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EXHIBIT 5.1
RIORDAN & MCKINZIE
A PROFESSIONAL LAW CORPORATION
695 TOWN CENTER DRIVE, SUITE 1500
COSTA MESA, CALIFORNIA 92626
June 30, 1997
Endocare, Inc.
7 Studebaker
Irvine, California 92618
Ladies and Gentlemen:
You have requested our opinion with respect to the 2,400,000 shares of
common stock (the "Common Stock") of Endocare, Inc., a Delaware corporation (the
"Company"), available for purchase under the Company's stock plans as follows:
2,000,000 shares of Common Stock are available under the Company's 1995 Stock
Plan (the "1995 Option Shares"), 150,000 shares of Common Stock are available
under the Company's 1995 Director Option Plan (the "Director Option Shares") and
250,000 shares of Common Stock are available under the Company's Employee Stock
Purchase Plan (the "Employee Plan Shares" and together with the 1995 Option
Shares and the Director Option Shares, the "Plan Shares").
The Plan Shares are the subject of a Registration Statement on Form S-8
(the "Registration Statement"), to which this opinion is attached as an exhibit,
to be filed with the Securities and Exchange Commission ("Commission") under the
Securities Act of 1933, as amended.
We have examined (i) the Company's Certification of Incorporation as
currently in effect, (ii) the Company's Bylaws, as amended to date, (iii) the
1995 Stock Plan, (iv) the 1995 Director Option Plan, (v) the Employee Stock
Purchase Plan, (vi) the Registration Statement and (vii) the originals or
copies, certified to our satisfaction, of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. We have also examined the
records of corporate proceedings taken in connection with the adoption of the
1995 Stock Plan, the 1995 Director Option Plan and the Employee Stock Purchase
Plan.
Based upon the foregoing examinations and subject to compliance with
the applicable state securities and "blue sky" laws, we are of the opinion that:
(a) the Employee Plan Shares when offered, sold and paid for pursuant to the
Employee Stock Purchase Plan, (b) the Director Option Shares when offered, sold
and paid for pursuant to the exercise of stock options granted pursuant to the
1995 Director Option Plan and (c) the 1995 Option Shares when offered, sold and
paid for pursuant to the exercise of stock options granted or the grant of
restricted stock pursuant to the 1995 Stock Plan, will each be duly authorized,
validly issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
RIORDAN & MCKINZIE
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our report incorporated herein by reference.
Our report dated February 3, 1997, except as to the fourth paragraph of Note 1
to the Financial Statements which is as of May 28, 1997, refers to the
restatement of the financial statements of Endocare, Inc. as of December 31,
1996, and for the year then ended. In addition, our report refers to a change in
the accounting for the impairment of long-lived assets and for long-lived assets
to be disposed of.
KPMG PEAT MARWICK LLP
Orange County, California
June 30, 1997
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EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) for the registration of 2,400,000 shares of common stock of
Endocare, Inc. of our report dated February 14, 1996, with respect to the
financial statements and schedule of Endocare, Inc. included in its Annual
Report (Form 10-K/A Amendment No. 2) for the year ended December 31, 1996, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Orange County, California
June 30, 1997
