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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY , 1996
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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HEARTSTREAM, INC.
(Exact name of Registrant as specified in its charter)
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<S> <C> <C>
DELAWARE 91-1577477
(State of (I.R.S. Employer Identification
incorporation) No.)
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2401 Fourth Avenue, Suite 300
Seattle, Washington 98121
(Address, including Zip code, of Registrant's principal executive offices)
1993 EMPLOYEE AND CONSULTANT STOCK PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
1995 DIRECTOR OPTION PLAN
(Full title of the plan)
Heartstream, Inc.
2401 Fourth Avenue, Suite 300
Seattle, Washington 98121
(206) 443-7630
(Name, address, and telephone number, including area code, of agent for service)
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COPIES TO:
Timothy Stevens, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED (1) REGISTERED PER SHARE OFFERING PRICE FEE
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1993 Employee and Consultant Stock
Plan
Common Stock, $.001 par value....... 1,382,637 shares (2) $ 4.18 (3) $5,779,423 (4) $1,993
Common Stock, $.001 par value....... 797,737 shares (5) $ 9.25 (6) $7,379,067 (7) $2,545
1995 Director Option Plan
Common Stock, $.001 par value....... 60,000 shares (8) $13.00 (9) $ 780,000 (10) $ 269
Common Stock, $.001 par value....... 90,000 shares (11) $ 9.25 (6) $ 832,500 (7) $ 288
1995 Employee Stock Purchase Plan
Common Stock, $.001 par value....... 250,000 shares (12) $ 7.87 (13) $1,967,500 (14) $ 679
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(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933 (the
"Act"), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2)For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into five subtotals. This subtotal represents the number of shares
issuable upon exercise of currently outstanding options (options that have
been granted as of the date of this Registration Statement) issued under the
1993 Employee and Consultant Stock Plan.
(3)Calculated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. Calculation based on the
weighted average exercise price (rounded to the nearest cent) at which the
options outstanding whose exercise will result in the issuance of the shares
being registered may be exercised.
(4)Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price of all currently outstanding options as described
in note 2 above.
(5)This subtotal represents the number of shares issuable upon exercise of
options that are available for grant, but have not yet been granted under
the 1993 Employee and Consultant Stock Plan.
(6)Estimated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. The calculation is based
upon the closing price of the Common Stock as reported on the Nasdaq
National Market on July 15, 1996 because the price at which the options to
be granted in the future may be exercised is not currently determinable.
(7)Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price for options available for grant.
(8)This subtotal represents the number of shares issuable upon exercise of
currently outstanding options (options that have been granted as of the date
of this Registration Statement) issued under the 1995 Director Option Plan.
(9)Calculated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. The calculation is based
upon the closing price of the Common Stock as reported on the Nasdaq
National Market on January 31, 1996.
(10)Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price of all currently outstanding options as described
in note 8 above.
(11)This subtotal represents the number of shares issuable upon exercise of
options that are available for grant, but have not yet been granted under
the 1995 Director Option Plan.
(12)This subtotal represents the number of shares authorized to be issued under
the 1995 Employee Stock Purchase Plan.
(13)Estimated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. Calculation based upon
85% (see explanation in following sentence) of the closing price of the
Common Stock as reported on the Nasdaq National Market on July 15, 1996
because the price at which the options to be granted in the future may be
exercised is not currently determinable. The purchase price of a share of
Common Stock pursuant to the 1995 Employee Stock Purchase Plan, which plan
is incorporated by reference herein, is equal to 85% of the Fair Market
Value of a share of Common Stock on either the first day or the last day of
the relevant offering period, whichever is lower.
(14)Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price for all options available as described in note 12
above.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information previously filed with the Securities
and Exchange Commission are hereby incorporated by reference.
(a)The audited financial statements for the Registrant's fiscal year ended
December 31, 1995 contained in the Prospectus filed pursuant to Rule
424(b)(4) under the Securities Act of 1933 on February 2, 196.
(b)The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed pursuant to Section 13 of the Exchange Act on May
14, 1996.
(c)The description of the Common Stock of the Registrant that is contained
in the Registration Statement on Form 8-A filed pursuant to Section 12 of
the Exchange Act on December 1, 1995.
(d)All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement 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 the Registration Statement and to be part thereof from the date of
filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain members of Wilson Sonsini Goodrich and Rosati, Professional
Corporation, beneficially own twenty thousand (20,000) shares of the
Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
certain liabilities (including reimbursement of expenses incurred) arising under
the Securities Act of 1933 (the "Securities Act").
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers and may indemnify its other officers and employees and
other agents to the fullest extent permitted by law, including circumstances in
which indemnification is otherwise discretionary under Delaware law.
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or recission.
The Registrant entered into indemnification agreements with its executive
officers and directors containing provisions which are in some respects broader
that the specific indemnification provisions contained in the General
Corporation Laws of Delaware. The indemnification agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature). These agreements also indemnify the directors and executive
officers for certain expenses (including attorney's fees), judgments, fines and
settlement amounts incurred as a result of any proceeding against them as to
which they could be indemnified.
II-1
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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EXHIBIT
NUMBER DOCUMENT
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of securities being registered.
*10.2 1993 Employee and Consultant Stock Plan and form of Stock Option Agreement thereunder.
*10.3 1995 Director Option Plan and form of Stock Option Agreement thereunder.
*10.4 1995 Employee Stock Purchase Plan and forms of agreements thereunder.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney
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*Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 33-99908), in the form declared effective on
January 31, 1996.
ITEM 9. UNDERTAKINGS.
(a)The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
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, 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, 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 therein, and the offering of such securities at that
time shall be deemed to be an 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 Securities 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
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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 issued.
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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 Seattle, State of Washington, on July 22, 1996.
HEARTSTREAM, INC.
/s/ ALAN J. LEVY
By:
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Alan J. Levy
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alan J. Levy and Gary Onn, jointly and severally,
as his or her attorney-in-fact, each with the power of substitution, for him or
her in any and all capacities, to sign any amendments to this Registration
Statement on Form S-8, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that the said attorneys-in-fact, or his or
her substitute or substitutes, may 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 date indicated.
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SIGNATURE TITLE DATE
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/s/ ALAN J. LEVY President, Chief Executive Officer and July 22, 1996
----------------------------------- Director* (Principal Executive Officer)
Alan J. Levy
/s/ GARY ONN Director of Finance and Administration July 22, 1996
----------------------------------- (Principal Financial and Accounting Officer)
Gary Onn
/s/ MICHAEL J. LEVINTHAL Director* July 18, 1996
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Michael J. Levinthal
/s/ ELLEN M. FEENEY Director* July 19, 1996
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Ellen M. Feeney
/s/ FRANK M. FISCHER Director* July 20, 1996
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Frank M. Fischer
/s/ WENDE S. HUTTON Director* July 18, 1996
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Wende S. Hutton
/s/ MARK B. KNUDSON Director* July 19, 1996
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Mark B. Knudson
/s/ KURT C. WHEELER Director* July 18, 1996
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Kurt C. Wheeler
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* The employee benefit plans being registered pursuant to this Registration
Statement are subject to administration by the Board of Directors of the
Registrant. Option grants under the 1995 Director Option Plan, however, are
automatic.
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INDEX TO EXHIBITS
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EXHIBIT DESCRIPTION PAGE
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation, as to the legality of
securities being registered....................................................................
*10.2 1993 Employee and Consultant Stock Plan and form of Stock Option Agreement thereunder.
*10.3 1995 Director Option Plan and form of Stock Option Agreement thereunder.
*10.4 1995 Employee Stock Purchase Plan and forms of agreements under.
23.1 Consent of Ernst & Young, LLP Independent Auditors..............................................
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1
hereto)........................................................................................
24.1 Power of Attorney (See Page II-4)...............................................................
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*Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 33-99908), in the form declared effective on
January 31, 1996.
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EXHIBIT 5.1
July 22, 1996
Heartstream, Inc.
2401 Fourth Avenue, Suite 300
Seattle, Washington 98121
Re: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on July 23, 1996 (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, of the 1993 Employee and Consultant Stock Plan (as to
2,180,374 shares), of the 1995 Employee Stock Plan (as to 250,000 shares), and
of the 1995 Director Option Plan (as to 150,000 shares) (collectively, the
"Plans"). As legal counsel for Heartstream, Inc., we have examined the
proceedings taken and are familiar with the proceedings proposed to be taken by
you in connection with the issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, will be legally and validly issued, fully-paid and
non-assessable.
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 and any amendments thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) of Heartstream, Inc. for the registration of its common stock
pertaining to the 1993 Employee and Consultant Stock Plan (2,180,374 shares),
the 1995 Employee Stock Purchase Plan (250,000 shares) and the 1995 Director
Option Plan (150,000 shares) of Heartstream, Inc. of our report dated January
15, 1996, with respect to the financial statements of Heartstream, Inc.,
included in its Registration Statement Form S-1 (No. 33-99908), filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
Seattle, Washington
July 22, 1996
