<PAGE> 1
As filed with the Securities and Exchange Commission on May 22, 1996
Registration No. 333-
-----------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CARDIOGENESIS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 77-0352469
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
540 OAKMEAD PARKWAY
SUNNYVALE, CALIFORNIA 94086
(Address of principal executive offices)
1993 EQUITY INCENTIVE PLAN
1996 EQUITY INCENTIVE PLAN
1996 DIRECTORS STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
ALLEN W. HILL, PRESIDENT AND CHIEF EXECUTIVE OFFICER
CARDIOGENESIS CORPORATION
540 OAKMEAD PARKWAY
SUNNYVALE, CALIFORNIA 94086
(408) 328-8500
(Name, address and telephone number, including area code, of agent for service)
COPIES TO:
Bruce W. Jenett, Esq.
Rashmi Garde, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
PROPOSED
MAXIMUM
AMOUNT OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE PRICE AGGREGATE REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE FEE
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.001 1,098,877(1) $ 20.00(2) $ 21,977,540(2) $7,579
Common Stock, par value $0.001 1,206,050(3) 0.49(4) 590,965 204
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Shares available for grant as of May 21, 1996 under the 1996 Equity
Incentive Plan and the 1996 Directors Stock Option Plan, and available for
issuance under the 1996 Employee Stock Purchase Plan.
(2) Estimated as of May 21, 1996 pursuant to Rule 457(c) under the Securities
Act of 1933, as amended, solely for the purpose of calculating the
registration fee.
(3) Shares subject to options outstanding as of May 21, 1996 under the 1993
Equity Incentive Plan.
(4) Weighted average per share exercise price of options outstanding as of May
21, 1996 under the plans referenced in footnote (3) above.
<PAGE> 2
CARDIOGENESIS CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) The Registrant's Prospectus filed with the Commission on May 22,
1996 under the Securities Act of 1933, as amended (the "Securities
Act") pursuant to Rule 424(b), which prospectus contains audited
financial statements for the fiscal year ended December 31, 1995.
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on May 2,
1996 with the Commission under Section 12(g) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and
declared effective by the Commission on May 21, 1996, and any
amendment or report subsequently filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant 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 registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 145 of the Delaware General Corporation Law,
the Registrant's Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors to the Registrant or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except for liability (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the Delaware General Corporation Law or (iv) for any transaction
from which the director derived an improper personal benefit. In addition, as
permitted by Section 145 of the Delaware General Corporation Law, the Bylaws of
the Registrant provide that: (i) the Registrant is required to indemnify its
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directors and officers to the fullest extent permitted by the Delaware General
Corporation Law; (ii) the Registrant may, in its discretion, indemnify employees
and agents as set forth in the Delaware General Corporation Law; (iii) upon
receipt of an undertaking to repay such advances if indemnification is
determined to be unavailable, the Registrant is required to advance expenses, as
incurred, to its directors and officers to the fullest extent permitted by the
Delaware General Corporation Law in connection with a proceeding (except if such
person breached his or her duty of loyalty, committed an act or omission not in
good faith or that involved intentional misconduct or a knowing violation of
law, or derived an improper personal benefit from a transaction; (iv) the rights
conferred in the Bylaws are not exclusive and the Registrant is authorized to
enter into indemnification agreements with its directors, officers and employees
and agents; and (v) the Registrant may not retroactively amend the Bylaw
provisions relating to indemnity.
The Registrant's policy is to enter into indemnity agreements with each
of its directors and executive officers. The indemnity agreements provide that
directors and executive officers will be indemnified and held harmless to the
fullest possible extent permitted by law including against all expenses
(including attorneys' fees), judgments, fines and settlement amounts paid or
reasonably incurred by them in any action, suit or proceeding, including any
derivative action by or in the right of the Registrant, on account of their
services as directors, officers, employees or agents of the Registrant or as
directors, officers, employees or agents of any other company or enterprise when
they are serving in such capacities at the request of the Registrant. The
Registrant will not be obligated pursuant to the agreements to indemnify or
advance expenses to an indemnified party with respect to proceedings or claims
(i) initiated by the indemnified party and not by way of defense, except with
respect to a proceeding authorized by the Board of Directors and, if the Board
of Directors finds it to be appropriate, proceedings brought to enforce a right
to indemnification under the Indemnity Agreement, (ii) for any amounts paid in
settlement of a proceeding unless the Registrant consents to such settlement,
(iii) on account of any suit in which judgment is rendered against the
indemnified party for an accounting of profits made from the purchase or sale by
the indemnified party of securities of the Registrant pursuant to the provisions
of Section 16(b) of the Securities Exchange Act of 1934 and related laws, (iv)
on account of conduct by a director which is finally adjudged to have been in
bad faith or conduct that the director did not reasonably believe to be in, or
not opposed to, the best interests of the Registrant, (v) on account of any
criminal action or proceeding arising out of conduct that the director had
reasonable cause to believe was unlawful or (vi) if a final decision by a court
having jurisdiction in the matter shall determine that such indemnification is
not lawful.
The indemnity agreements also provide for contribution in certain
situations in which the Registrant and a director or executive officer are
jointly liable but indemnification is unavailable, such contribution to be based
on the relative benefits received and the relative fault of the Registrant and
the director or executive officer. Contribution is not allowed in connection
with a Section 16(b) judgment, an adjudication of bad faith or conduct that a
director or executive officer did not reasonably believe to be in, or not
opposed to, the best interests of the Registrant or a proceeding arising out of
conduct a director or executive officer had reasonable cause to believe was
unlawful.
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The indemnity agreements require a director or executive officer to
reimburse the Registrant for all expenses advanced only to the extent it is
ultimately determined that the director or executive officer is not entitled,
under Delaware law, the Bylaws, the indemnity agreement or otherwise, to be
indemnified for such expenses. The indemnity agreement provides that it is not
exclusive of any rights a director or executive officer may have under the
Company's Certificate of Incorporation, Bylaws, other agreements, any vote of
the stockholders or vote of disinterested directors, the Delaware law or
otherwise.
The indemnification provision in the Bylaws, and the indemnity
agreements entered into between the Registrant and its directors and executive
officers, may be sufficiently broad to permit indemnification of the
Registrant's executive officers and directors for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act").
The Registrant, with approval by the Board of Directors, expects to
purchase director and officer liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS
4.01 Registrant's Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.01 of Registrant's
Registration Statement on Form SB-2, File No. 333-3752-LA,
initially filed on April 17, 1996, and as subsequently
amended through May 22, 1996 (the "Form SB-2")).
4.02 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.02 of the Form
SB-2).
4.03 Registrant's form of Restated Certificate of Incorporation to
be filed following the closing of Registrant's initial public
offering (incorporated herein by reference to Exhibit 3.03 of
the Form SB-2).
4.04 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.04 of the Form SB-2).
4.05 Registrant's 1993 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.01 of the
Form SB-2).
4.06 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the
Form SB-2).
4.07 Registrant's 1996 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.03
of the Form SB-2).
4.08 Registrant's 1996 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.04
of the Form SB-2).
4.09 Form of Specimen Certificate for Registrant's Common Stock
(incorporated herein by reference to Exhibit 4.01 of the Form
SB-2).
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4.10 Registrant's Second Restated Investor's Rights Agreement,
dated as of December 5, 1995, as amended (incorporated herein
by reference to Exhibit 4.02 of the Form SB-2).
5.01 Opinion of Fenwick & West LLP.
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).
23.02 Consent of Coopers & Lybrand, L.L.P., independent
accountants.
24.01 Power of Attorney (see page 8).
ITEM 9. UNDERTAKINGS.
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;
(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; and
(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 (1)(i) and (1)(ii) above do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference 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.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to
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Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in the 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.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions discussed in Item 6 hereof, or otherwise,
the Registrant has been advised that in the opinion of the 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 Securities 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, 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 Sunnyvale, State of California, on the 21st day of
May, 1996.
CARDIOGENESIS CORPORATION
By: /s/ Allen W. Hill
-------------------------------------
Allen W. Hill,
President and Chief Executive Officer
7
<PAGE> 8
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose
signature appears below constitutes and appoints Allen W. Hill, Richard P.
Powers and Edward F. Brennan, and each of them, his true and lawful
attorneys-in-fact and agents with full power of substitution, 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 on Form
S-8, and to file the same with all exhibits thereto and all 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 and about the premises, 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 his or their substitute or
substitutes, may lawfully 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 dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
PRINCIPAL EXECUTIVE OFFICER
AND DIRECTOR:
<S> <C> <C>
/s/ Allen W. Hill
- ---------------------------------------- President, Chief Executive May 21, 1996
Allen W. Hill Officer and a Director
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Richard P. Powers
- ---------------------------------------- Vice President of Finance and May 21, 1996
Richard P. Powers Administration, Chief Financial
Officer and Secretary
ADDITIONAL DIRECTORS:
/s/ David B. Apfelberg Director May 21, 1996
- ----------------------------------------
David B. Apfelberg
/s/ Jack M. Gill Director May 21, 1996
- ----------------------------------------
Jack M. Gill
/s/ David C. Hull, Jr. Director May 21, 1996
- ----------------------------------------
David C. Hull, Jr.
/s/ Thomas D. Kiley Director May 21, 1996
- ----------------------------------------
Thomas D. Kiley
Director May __, 1996
- ----------------------------------------
F. Thomas (Jay) Watkins III
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<C> <S>
4.01 Registrant's Certificate of Incorporation (incorporated herein by reference to
Exhibit 3.01 of the Form SB-2).................................................
4.02 Registrant's Certificate of Designation of Preferred Stock (incorporated
herein by reference to Exhibit 3.02 of the
Form SB-2) ....................................................................
4.03 Registrant's form of Restated Certificate of Incorporation to be filed
following the closing of Registrant's initial public offering (incorporated
herein by reference to Exhibit 3.03 of the Form SB-2)..........................
4.04 Registrant's Bylaws (incorporated herein by reference to Exhibit 3.04 of the
Form SB-2).....................................................................
4.05 Registrant's 1993 Equity Incentive Plan and related documents (incorporated
herein by reference to Exhibit 10.01 of the Form SB-2).........................
4.06 Registrant's 1996 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.02 of the Form SB-2)...........
4.07 Registrant's 1996 Directors Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form SB-2)...........
4.08 Registrant's 1996 Employee Stock Purchase Plan and related documents
(incorporated herein by reference to Exhibit 10.04 of the Form SB-2)...........
4.09 Form of Specimen Certificate for Registrant's Common Stock (incorporated
herein by reference to Exhibit 4.01 of the Form SB-2)..........................
4.10 Registrant's Second Restated Investor's Rights Agreement, dated as of
December 5, 1995, as amended (incorporated herein by reference to Exhibit
4.02 of the Form SB-2).........................................................
5.01 Opinion of Fenwick & West LLP..................................................
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01).......................
23.02 Consent of Coopers & Lybrand, L.L.P., independent accountants..................
24.01 Power of Attorney (see page 8).................................................
</TABLE>
<PAGE> 1
EXHIBIT 5.01
May 21, 1996
CardioGenesis Corporation
540 Oakmead Parkway
Sunnyvale, California 94086
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about May 22, 1996 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
2,304,927 shares of your Common Stock (the "Stock") subject to issuance by you
upon the exercise of (a) stock options granted by you under your 1993 Equity
Incentive Plan, as amended (the "1993 Plan"), (b) stock options granted or to
be granted by you under your 1996 Equity Incentive Plan (the "1996 Plan"), (c)
stock options granted or to be granted by you under your 1996 Directors Stock
Option Plan (the "Directors Plan") or (d) purchase rights granted or to be
granted under your 1996 Employee Stock Purchase Plan, as amended (the "Purchase
Plan").
In rendering this opinion, we have examined the following:
(1) your registration statement on Form SB-2 (File Number
333-3752-LA) filed with and declared effective by the
Securities and Exchange Commission on May 21, 1996, together
with the Exhibits filed as a part thereof;
(2) the Registration Statement, together with the Exhibits filed
as a part thereof, including, without limitation, the 1993
Plan, the 1996 Plan, the Directors Plan, the Purchase Plan and
related documents;
(3) the minutes of meetings and actions by written consent of the
stockholders and Board of Directors that are contained in your
minute books and the minute books of your predecessor,
CardioGenesis Corporation, a California corporation
("CardioGenesis California"), that are in our possession; and
(4) the stock record books you have provided to us, including
records of the capital stock, stock options and warrants you
have issued, as well as such stock records provided by you
respecting CardioGenesis California.
<PAGE> 2
CardioGenesis Corporation
May 21, 1996
Page 2
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the lack of any undisclosed terminations, modifications, waivers or
amendments to any documents reviewed by us and the due execution and delivery of
all documents where due execution and delivery are prerequisites to the
effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from public
officials and records included in the documents referred to above. We have made
no independent investigations or other attempts to verify the accuracy of any of
such information or to determine the existence or non-existence of any other
factual matters; however, we are not aware of any facts that would lead us to
believe that the opinion expressed herein is not accurate.
Based upon the foregoing, it is our opinion that the 2,304,927 shares
of Stock that may be issued and sold by you upon the exercise of (a) stock
options granted under the 1993 Plan, (b) stock options granted or to be granted
under the 1996 Plan, (c) stock options granted or to be granted under the
Directors Plan and (d) purchase rights granted or to be granted under the
Purchase Plan, when issued and sold in accordance with the applicable plan and
stock options or purchase rights granted thereunder, and in the manner referred
to in the relevant Prospectus associated with the Registration Statement, will
be legally issued, fully paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for the
your use as an exhibit to the Registration Statement for the purpose of the
above sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
FENWICK & WEST LLP
By: /s/ Bruce Jenett
-----------------------------
Partner
<PAGE> 1
EXHIBIT 23.02
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated April 9, 1996, except for
Note 13 as to which the date is April 23, 1996, on our audits of the financial
statements of CardioGenesis Corporation.
COOPERS & LYBRAND L.L.P.
Palo Alto, California
May 21, 1996
