<PAGE>
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*Total Number of Pages: As filed with the Securities and Exchange
Commission on September 17, 1996
Index to Exhibits at Page: Registration No. 333-
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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CARDIOTHORACIC SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3228757
(State of incorporation) (I.R.S. Employer Identification No.)
10600 North Tantau Avenue
Cupertino, California 95014
(Address, including zip code, of Registrant's principal executive offices)
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INCENTIVE STOCK PLAN
EMPLOYEE STOCK PURCHASE PLAN
DIRECTOR OPTION PLAN
NONSTATUTORY STOCK OPTION PLAN
(Full titles of the plans)
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CardioThoracic Systems, Inc.
10600 North Tantau Avenue
Cupertino, California 95014
(408) 342-1700
(Name, address, and telephone number, including area code, of agent for service)
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Copies to:
Christopher J. Ozburn, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(415) 493-9300
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF PROPOSED PROPOSED
SECURITIES AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TO BE TO BE OFFERING PRICE AGGREGATE REGISTRATION
REGISTERED (1) REGISTERED PER SHARE OFFERING PRICE FEE
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<S> <C> <C> <C> <C>
Incentive Stock Plan
Common Stock, $.001 par value 1,006,500 shares (2) $ 0.51 (3) $ 513,315(4) $ 178
Common Stock, $.001 par value 503,500 shares (5) 18.00 (6) $9,063,000(7) $3,126
Director Option Plan
Common Stock, $.001 par value 12,000 shares (2) $ 13.75 (8) $ 165,000(4) $ 57
Common Stock, $.001 par value 188,000 shares (5) 18.00 (6) $3,384,000(7) $1,167
Employee Stock Purchase Plan
Common Stock, $.001 par value 150,000 shares (9) $ 15.30 (10) $2,295,000(4) $ 792
Nonstatutory Stock Option Plan 995,000 shares (2) $ 2.32 (3) $2,308,400(4) $ 796
TOTAL $6,116
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- ------------------------------------------------------------------------------------------------------
</TABLE>
(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).
(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.
(5) This subtotal represents the number of shares issuable upon exercise of
options that are available for grant, but have not yet been granted.
(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 September 12, 1996 because the price at which
the options to be granted in the future may be exercised is not currently
determinable.
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(7) Calculated in accordance with Rule 457(h) under the Act based on the
aggregate exercise price for options available for grant.
(8) 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 August 12, 1996.
(9) This subtotal represents the number of shares authorized to be issued
under the Employee Stock Purchase Plan.
(10) 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 September
12, 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 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.
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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 1995 contained in the Prospectus filed pursuant to
Rule 424(b)(4) under the Securities Act of 1933, as amended (the
"Securities Act"), on April 18, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), on May 2, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed pursuant to Section 13 of the Exchange Act, on
August 8, 1996.
(d) 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 March 1, 1996.
(e) 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 hereof 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, and investment partnerships of which such persons are partners
beneficially own 27,000 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 executive 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 limits 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. Such
limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
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 Law of Delaware. The indemnification agreements may
require the Company, among other things, to indemnify
II-1
<PAGE>
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
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 Incentive Stock Plan and forms of Agreements thereunder.
*10.3 Director Option Plan and form of Director Stock Option
Agreement thereunder.
*10.4 Employee Stock Purchase Plan and forms of agreements thereunder.
*10.5 Nonstatutory Stock Option Plan and form of Nonstatutory Stock
Option Agreement thereunder.
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
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).
__________________
* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 333-1840), in the form declared effective
on April 17, 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.
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<PAGE>
(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 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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<PAGE>
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 Cupertino, State of California, on
September 17, 1996.
CardioThoracic Systems, Inc.
By: /s/ Richard M. Ferrari
---------------------------------
Richard M. Ferrari
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard M. Ferrari and Steve M. Van
Dick, jointly and severally, as his attorney-in-fact, each with the power of
substitution, for him 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 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Richard M. Ferrari
- -------------------------- President, Chief Executive Officer and September 17, 1996
Richard M. Ferrari Director* (Principal Executive Officer)*
/s/ Steve M. Van Dick
- -------------------------- Vice President of Finance and September 17, 1996
Steve M. Van Dick Administration and Chief Financial
Officer (Principal Financial and
Accounting Officer)
/s/ Charles S. Taylor
- -------------------------- Vice President, Chief Technical Officer September 17, 1996
Charles S. Taylor and Director*
/s/ Robert C. Bellas, Jr.
- -------------------------- Director* September 17, 1996
Robert C. Bellas, Jr.
/s/ Thomas J. Fogarty, M.D.
- -------------------------- Director* September 17, 1996
Thomas J. Fogarty, M.D.
/s/ Jack W. Lasersohn
- -------------------------- Director* September 17, 1996
Jack W. Lasersohn
/s/ Thomas C. McConnell
- -------------------------- Director* September 17, 1996
Thomas C. McConnell
/s/ Philip M. Young
- -------------------------- Director* September 17, 1996
Philip M. Young
/s/ Joseph A. Ciffolillo
- -------------------------- Director* September 17, 1996
Joseph A. Ciffolillo
</TABLE>
* 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 Director Option Plan, however, are
automatic.
II-4
<PAGE>
INDEX TO EXHIBITS
EXHIBIT DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati,
Professional Corporation, as to the legality of
securities being registered
*10.2 Incentive Stock Plan and forms of Agreements
thereunder
*10.3 Director Option Plan and form of Director Stock
Option Agreement thereunder
*10.4 Employee Stock Purchase Plan and forms of
agreements under
*10.5 Nonstatutory Stock Option Plan and form of
Nonstatutory Stock Option Agreement thereunder
23.1 Consent of Coopers & Lybrand L.L.P., Independent
Accountants
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)
_______________
* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 333-1840), in the form declared effective on
April 17, 1996.
<PAGE>
EXHIBIT 5.1
September 17, 1996
CardioThoracic Systems, Inc.
10600 North Tantau Avenue
Cupertino, California 95014
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 September 17, 1996 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of the Incentive Stock Plan (as to
1,510,000 shares), of the Employee Stock Purchase Plan (as to 150,000
shares), of the Director Option Plan (as to 200,000 shares) and of the
Nonstatutory Stock Option Plan (as to 995,000 shares) (collectively, the
"Plans"). As legal counsel for CardioThoracic Systems, 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 of
Common Stock of CardioThoracic Systems, Inc. (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,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE>
EXHIBIT 23.1
CONSENT OF COOPERS & LYBRAND L.L.P., INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of CardioThoracic Systems, Inc. of our report dated February 12,
1996, except for Note 11 for which the date is March 29, 1996, on our audit
of the financial statements of CardioThoracic Systems, Inc., as of December
31, 1995, and for the period from June 15, 1995 (date of inception) to
December 31, 1995, which report is included in the Registration Statement on
Form S-1 (No. 333-1840), filed with the Securities and Exchange Commission.
Coopers & Lybrand L.L.P.
San Jose, California
September 17, 1996
