As filed with the Securities and Exchange Commission on November 7, 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
ARTERIAL VASCULAR ENGINEERING, INC.
(Exact name of registrant as specified in its charter)
Delaware 94-3144218
(State of Incorporation) (I.R.S. Employer Identification No.)
3576 Unocal Place
Santa Rosa, California 95403
(Address of principal executive offices)
1997 Employee Stock Purchase Plan
(Full title of the plans)
Lawrence J. Fassler
General Counsel and Secretary
Arterial Vascular Engineering, Inc.
3576 Unocal Place
Santa Rosa, California 95403
(707) 525-0111
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
========================== ====================== ========================== =========================== ===========================
Proposed Maximum Proposed Maximum
Title of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered Per Share (1) Price (1) Registration Fee
========================== ====================== ========================== =========================== ===========================
<S> <C> <C> <C> <C>
Common Stock (par value
$.001) 1,500,000 $54.125 $81,187,500 $24,602.25
========================== ====================== ========================== =========================== ===========================
<FN>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c), based upon $54.125, the average
of the high and low sales prices of Registrant's Common Stock on November
3, 1997, 1997, as reported on the Nasdaq National Market.
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</FN>
</TABLE>
Approximate date of commencement of proposed sale to employees: As soon as
practicable after this Registration Statement becomes effective.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Arterial Vascular Engineering, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) The Company's latest annual report on Form 10-K filed pursuant to
Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), or either (1) the Company's latest prospectus filed pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (the "Act"), that
contains audited financial statements for the Company's latest fiscal year for
which such statements have been filed, or (2) the Company's effective
registration statement on Form 10 or 20-F filed under the Exchange Act
containing audited financial statements for the Company's latest fiscal year.
(b) All other reports filed pursuant to Sections 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the annual report, the
prospectus or the registration statement referred to in (a) above.
(c) The description of the Company's Common Stock which is contained in a
registration statement filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All reports and other documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which reregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
INTERESTS OF NAMED EXPERTS AND COUNSEL
Lawrence J. Fassler, General Counsel and Secretary of the Company, whose
opinion is included herewith as Exhibit 5, holds 2,000 shares of common stock of
the Company and holds options to purchase an additional 27,500 shares of common
stock of the Company as of November 6, 1997, of which 6,563 were then
exercisable.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, the Company has
broad powers to indemnify its directors and officers against liabilities they
may incur in such capacities, including liabilities under the Act. The Company's
By-laws also provide that the Company shall indemnify its directors, officers,
employees and other agents to the fullest extent not prohibited by Delaware law.
The Company's Amended and Restated Certificate of Incorporation provides
for the elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its stockholders. These
provisions do not eliminate the directors' duty of care and, in appropriate
circumstances, equitable remedies such an injunctive or other forms of
non-monetary relief will remain available under Delaware law. In addition, each
director will continue to be subject to liability for breach of the director's
duty of loyalty to the Company, for acts or omissions not in good faith or
involving intentional misconduct, for knowing violations, of law, for any
transaction from which the director derived an improper personal benefit, and
for payment of dividends or approval of stock repurchases or redemptions that
are unlawful under Delaware law. The provision does not affect a director's
responsibilities under any other laws, such as the federal securities laws or
state or federal environmental laws.
The Company has entered into an indemnification agreement with each of its
directors and executive officers under which the Company has indemnified each of
them against expenses and losses incurred for claims brought against them by
reason of being a director or executive officer of the Company. In connection
with the litigation of certain former shareholders of Endovascular Support
Systems, Inc., the Company has agreed to indemnify each of the individuals named
as defendants in such lawsuits, including three current directors of the
Company. The Company has obtained directors' and officers' liability insurance,
and expects to continue to carry such insurance following this offering.
<PAGE>
EXHIBITS
Exhibit
Number
- ------
5 Opinion of Lawrence J. Fassler
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Lawrence J. Fassler (included in Exhibit 5)
24 Power of Attorney (contained on the signature page)
<PAGE>
UNDERTAKINGS
1. 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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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 (a)(i) and (a)(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 that are incorporated
by reference in the registration statement.
(b) 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 herein, and the
offering of 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Exchange 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.
3. Insofar as indemnification for liabilities arising under the Securities
Exchange 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.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Company 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 Santa Rosa, State of California, on November 3, 1997.
ARTERIAL VASCULAR ENGINEERING, INC.
By: /s/ Scott J. Solano
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Scott J. Solano
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Scott J. Solano and Lawrence J. Fassler,
and each or any one of them, his true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him and in his 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 other 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 requisite and necessary to be done in
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
<TABLE>
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.
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Bradly A. Jendersee Chairman of the Board of November 3, 1997
- -------------------------------------------- Directors
Bradly A. Jendersee
/s/ Scott J. Solano President, Chief Executive Officer November 3, 1997
- -------------------------------------------- and Director (Principal Executive Officer)
Scott J. Solano
/s/ John D. Miller Vice President of Finance, Chief November 3, 1997
- -------------------------------------------- Financial Officer, Treasurer and
John D. Miller Director (Principal Financial and
Accounting Officer)
/s/ Simon H. Stertzer Director November 3, 1997
- --------------------------------------------
Simon H. Stertzer
/s/ Craig E. Dauchy Director November 3, 1997
- --------------------------------------------
Craig E. Dauchy
</TABLE>
<PAGE>
EXHIBITS
Exhibit
Number
- ------
5 Opinion of Lawrence J. Fassler
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Lawrence J. Fassler (included in Exhibit 5)
24 Power of Attorney (contained on the signature page)
AVE LOGO
[GRAPHIC OMITTED]
EXHIBIT 5
November 3, 1997
Arterial Vascular Engineering, Inc.
3576 Unocal Place
Santa Rosa, CA 95403
Ladies and Gentlemen:
I am General Counsel of Arterial Vascular Engineering, Inc. (the ("Company") and
am rendering this opinion with respect to certain matters in connection with the
filing by the Company of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission covering the offering of
up to 1,500,000 shares of the Company's Common Stock, $.001 par value, (the
"Shares") pursuant to its 1997 Employee Stock Purchase Plan (the "Plan").
In connection with this opinion, I have examined the Registration Statement and
related Prospectus, the Company's Certificate of Incorporation and By-laws, as
amended, and such other documents, records, certificates, memoranda and other
instruments as I deem necessary as a basis for this opinion. I have assumed the
genuineness and authenticity of all documents submitted to me as originals, the
conformity to originals of all documents submitted to me as copies thereof, and
the due execution and delivery of all documents where due execution and delivery
are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, I am of the opinion that
the Shares, when sold and issued in accordance with the Plan, the Registration
Statement and related Prospectus, will be validity issued, fully paid, and
nonassessable (except as to shares issued pursuant to certain deferred payment
arrangements, which will be fully paid and nonassessable when such deferred
payments are made in full).
I consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Lawrence J. Fassler
Lawrence J. Fassler
General Counsel
ARTERIAL VASCULAR ENGINEERING, INC. E-Mail: www.avei.com
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3576 UNOCAL PLACE Tel: (707) 525-0111
SANTA ROSA, CALIFORNIA 95403 Fax: (707) 525-0114
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 1997 Employee Stock Purchase Plan of Arterial
Vascular Engineering, Inc. of our report dated July 25, 1997, except as to the
first paragraph of Note 5 as to which the date is August 21, 1997, with respect
to the consolidated financial statements and schedule of Arterial Vascular
Engineering, Inc. and Subsidiaries included in the Annual Report on Form 10-K
for the year ended June 30, 1997, filed with the Securities and Exchange
Commission.
/s/ ERNST & YOUNG LLP
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ERNST & YOUNG LLP
Palo Alto, California
November 3, 1997
