As filed with the Securities and Exchange Commission on December 14, 1998
Registration No. 333-__________
================================================================================
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)
Assumed Options of
World Medial Manufacturing Corporation
(Full title of the plans)
Lawrence J. Fassler
Vice President of Legal Affairs,
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) 308,177 $9.31 $2,869,127.87 $797.62
============================================================================================================================
============================================================================================================================
<FN>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h)(l), based upon $9.31, the
weighted average exercise price of $6.60 - $26.42, the exercise prices of
options outstanding under the World Medical Manufacturing Corporation
1996 Non-Qualified Stock Option Plan assumed by the Registrant on
December 14, 1998 and converted into options to purchase Registrant's
Common Stock pursuant to an Agreement and Plan of Reorganization dated as
of April 10, 1998.
</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, Vice President of Legal Affairs, General Counsel
and Secretary of the Company, whose opinion is included herewith as Exhibit 5,
holds 33,200 shares of common stock of the Company and holds options to purchase
an additional 51,125 shares of common stock of the Company as of December 14,
1998, none of which were exercisable as of such date.
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>
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 December 11,
1998.
ARTERIAL VASCULAR ENGINEERING, INC.
By: /s/ Scott J. Solano
---------------------------------------------
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/ Scott J. Solano President, Chief Executive Officer December 11, 1998
- ---------------------------------------- and Director (Principal Executive
Scott J. Solano Officer)
/s/ John D. Miller Chief Financial Officer, Treasurer December 11, 1998
- ---------------------------------------- and Director (Principal Financial and
John D. Miller Accounting Officer)
/s/ George B. Borkow Director December 11, 1998
- ----------------------------------------
George B. Borkow
/s/ Craig E. Dauchy Director December 11, 1998
- ----------------------------------------
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
December 14, 1998
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 308,177 shares of the Company's Common Stock, $.001 par value, (the
"Shares") pursuant to the Company's assumption pursuant to the Agreement and
Plan of Reorganization dated as of April 10, 1998 between the Company and World
Medical Manufacturing Corporation ("World Medical") of the stock options
formerly outstanding pursuant to the World Medical's 1996 Non-Qualified Stock
Option Plan (the "Plan").
In connection with this opinion, I have examined the Agreement and Plan of
Reorganization, 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 validly 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
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 of Arterial Vascular Engineering, Inc. pertaining to
assumed options of World Medical Manufacturing Corporation of our report dated
July 17, 1998, 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, as amended, for the year ended June 30, 1998, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
December 11, 1998
