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As filed with the Securities and Exchange Commission on December 21, 2000
Registration No. 333-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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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)
DELAWARE 33-0618093
(State or other jurisdiction (IRS Employer
of incorporation or organization) Identification No.)
7 STUDEBAKER, IRVINE, CALIFORNIA 92618
(Address of principal executive offices) (Zip Code)
ENDOCARE, INC.
1995 STOCK PLAN
(Full title of the Plan)
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PAUL W. MIKUS
CHIEF EXECUTIVE OFFICER, PRESIDENT AND CHAIRMAN OF THE BOARD
ENDOCARE, INC.
7 STUDEBAKER
IRVINE, CALIFORNIA 92618
(Name and address of agent for service)
(949) 595-4770
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price per Aggregate Offering Amount of
Registered Registered(1) Share(2) Price(2) Registration Fee
------------------------------ -------------- ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
1995 Stock Plan
Common Stock, $0.001 par value 337,450 shares $13.91 $4,693,929.50 $1,239.20
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the Registrant's 1995 Stock Plan
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the Registrant's receipt of
consideration which results in an increase in the number of the
outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the
high and low selling price per share of the Registrant's Common Stock on
December 18, 2000, as reported by the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
Endocare, Inc. (the "Registrant") hereby incorporates by
reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 filed with the SEC on March 30,
2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000 filed with the SEC on May 15, 2000;
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000 filed with the SEC on August 14, 2000;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000 filed with the SEC on November 14,
2000;
(g) The Registrant's Current Reports on Form 8-K filed with the
SEC on May 15, 2000 and December 15, 2000; and
(h) The Registrant's Registration Statement on Form 10-SB/A filed
with the SEC on January 5, 1996 pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended (the "1934 Act"),
in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements
filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 (the "1934 Act") after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof 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 or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes 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 Capital Stock
Inapplicable.
Item 5. Interests of Named Experts and Counsel
Inapplicable.
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
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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 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 to the
full extent authorized by law, indemnify 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 Registrant maintains a directors' and officers' liability
insurance policy that, subject to certain limitations, terms and conditions,
will insure the directors and officers of the Registrant against losses arising
from wrongful act (as defined by the policy) in their capacity as a director or
officer.
Item 7. Exemption from Registration Claimed
Inapplicable.
Item 8. Exhibits
Exhibit Number Exhibit
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4.1 Instruments Defining Rights of Stockholders. Reference
is made to Registrant's Registration Statement on Form
10-SB/A filed with the SEC on January 5, 1996, and the
exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c) of this Registration
Statement.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained
in Exhibit 5.
24.1 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1* Endocare, Inc. 1995 Stock Plan (as last amended and
restated on March 2, 1999).
99.2* Form of Stock Option Agreement.
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* Exhibits 99.1 and 99.2 are incorporated by reference to Exhibits 99.1 and
99.2 to Registrant's Registration Statement on Form S-8 (File No. 333-79785),
filed with the SEC on June 2, 1999.
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, as amended (the "1933 Act"),
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this Registration Statement,
and (iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that clauses (1)(i) and (1)(ii) shall 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 1934 Act that are incorporated by reference into the
registration statement; (2) that for the purpose of determining any liability
under the 1933 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 upon the termination of the 1995 Stock Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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 1933 Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the indemnification provisions summarized in Item 6
above, or otherwise the Registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the 1933 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 1933 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 Irvine, State of California, on this 21st day of
December, 2000.
ENDOCARE, INC.
By /s/ PAUL W. MIKUS
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Paul W. Mikus
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of Endocare, Inc.,
a Delaware corporation, do hereby constitute and appoint Paul W. Mikus and
William R. Hughes, the lawful attorneys and agents, with full power and
authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms all that said attorneys and agents, or
any of them, shall do or cause to be done by virtue hereof. This Power of
Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
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 dates indicated.
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Signatures Title Date
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<S> <C> <C>
/s/ PAUL W. MIKUS Chief Executive Officer, President, and December 21, 2000
------------------------------------ Chairman of the Board (Principal Executive
Paul W. Mikus Officer)
/s/ WILLIAM R. HUGHES Senior Vice President and December 21, 2000
------------------------------------ Chief Financial Officer (Principal
William R. Hughes Financial and Accounting Officer)
/s/ PETER F. BERNARDONI Director December 21, 2000
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Peter F. Bernardoni
/s/ ROBERT F. BYRNES Director December 21, 2000
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Robert F. Byrnes
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<TABLE>
<S> <C> <C>
/s/ BENJAMIN GERSON Director December 21, 2000
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Benjamin Gerson
/s/ ALAN L. KAGANOV Director December 21, 2000
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Alan L. Kaganov
/s/ MICHAEL J. STRAUSS Director December 21, 2000
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Michael J. Strauss
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ENDOCARE, INC.
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EXHIBIT INDEX
Exhibit Number Exhibit
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4.1 Instruments Defining Rights of Stockholders. Reference
is made to Registrant's Registration Statement on Form
10-SB/A filed with the SEC on January 5, 1996, and the
exhibits thereto, which are incorporated herein by
reference pursuant to Item 3(c) of this Registration
Statement.
5.1 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of KPMG LLP, Independent Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained
in Exhibit 5.
24.1 Power of Attorney. Reference is made to page II-4 of
this Registration Statement.
99.1* Endocare, Inc. 1995 Stock Plan (as last amended and
restated on March 2, 1999).
99.2* Form of Stock Option Agreement.
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* Exhibits 99.1 and 99.2 are incorporated by reference to Exhibits 99.1 and
99.2 to Registrant's Registration Statement on Form S-8 (File No. 333-79785),
filed with the SEC on June 2, 1999.
