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As Filed With the Securities and Exchange Commission on December 21, 2000
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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RADIANCE MEDICAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 68-0328265
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13700 Alton Parkway, Suite 160, Irvine, California 92618
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(Address of Principal Executive Offices) (Zip Code)
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1996 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plans)
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Stephen Kroll
Chief Financial Officer
Radiance Medical Systems, Inc.
13700 Alton Parkway, Suite 160, Irvine, California 92618
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(Name and address of agent for service)
(949) 457-9546
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(Telephone number, including area code, of agent for service)
Copies to:
Lawrence B. Cohn
Stradling Yocca Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
(949) 725-4000
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CALCULATION OF REGISTRATION FEE
<TABLE>
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<S> <C> <C> <C> <C>
Title of Securities Proposed Maximum Offering Proposed Maximum Amount of
to be Registered Amount to be Price Per Aggregate Offering Registration
Registered(1) Share Price(2) Fee
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Common Stock, $.001 600,000 shares $5.4297 $3,257,820 $860
par value
(1996 Plan)
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Common Stock, $.001 200,000 shares $5.4297 $1,085,940 $287
par value
(ESPP)
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</TABLE>
(1) Also registered hereunder are an indeterminate number of shares which
may become issuable pursuant to the anti-dilution adjustment provisions
of the Registrant's 1996 Stock Option/Stock Issuance Plan (the "1996
Plan") and Employee Stock Purchase Plan (the "ESPP").
(2) In accordance with Rule 457(h), the aggregate offering price of shares
of Common Stock registered hereby is estimated, solely for purposes of
calculating the registration fee, on the basis of the price of
securities of the same class, as determined in accordance with Rule
457(c), using the average of the high and low prices reported by the
Nasdaq National Market System for the Common Stock on December 19, 2000,
which was $5.4297 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement registers shares of Registrant's Common
Stock (1) issuable upon exercise of options under the Registrant's 1996 Stock
Option/Stock Issuance Plan (as amended and restated as of April 8, 1997, March
12, 1998 and November 3, 1998, and as amended as of March 31, 2000) (the "1996
Plan"); and (2) available for purchase under the Registrant's Employee Stock
Purchase Plan.
The 1996 Plan was amended by the Registrant's Board of Directors on
March 31, 2000, subject to stockholder approval, which was obtained at the
Registrant's Annual Meeting of Stockholders held on June 6, 2000. As currently
amended, 3,450,000 shares of Common Stock are available for grant under the 1996
Plan. Initially, an aggregate of 1,200,000 shares of Common Stock were available
for grant or award under the 1996 Plan, which shares were registered on Form S-8
(Registration No. 333-07959), filed as of July 11, 1996. Pursuant to the April
8, 1997 amendment, 700,000 additional shares of Common Stock were available for
grant or award under the 1996 Plan, which shares were registered on Form S-8
(Registration No. 333-42161), filed as of December 12, 1997. Pursuant to the
March 12, 1998 amendment, 200,000 additional shares of Common Stock were
available for grant or award under the 1996 Plan, which shares were registered
on Form S-8 (Registration No. 333-59305), filed as of July 17, 1998. Pursuant to
the November 3, 1998 amendment, 750,000 additional shares of Common Stock were
available for grant or award under the 1996 Plan, which shares were registered
on Form S-8 (Registration No. 333-72531), filed as of February 17, 1999. This
Registration Statement covers the additional 600,000 shares of Common Stock
issuable under the 1996 Plan.
This Registration Statement also registers 200,000 shares of Common
Stock which are available for purchase pursuant to the Registrant's Employee
Stock Purchase Plan (the "ESPP"). Initially, an aggregate of 200,000 shares of
Common Stock were available for purchase under the ESPP, which shares were
registered on Form S-8 (Registration No. 333-07959), filed as of July 11, 1996.
This Registration Statement covers the additional 200,000 shares of Common Stock
issuable under the ESPP.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration Statement
the following documents previously filed with the Securities and Exchange
Commission (the "SEC"):
(a) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-07959), filed as of July 11, 1996.
(b) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-42161), filed as of December 12, 1997.
(c) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-59305), filed as of July 17, 1998.
(d) The Registrant's Registration Statement on Form S-8 (Registration
No. 333-72531), filed as of February 17, 1999.
(e) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed on April 14, 2000.
(f) The Registrant's Proxy Statement on Schedule 14A for the 2000
Annual Meeting of Stockholders, filed on April 28, 2000.
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(g) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000, filed on May 15, 2000.
(h) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000, filed on August 11, 2000.
(i) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000, filed on November 13, 2000.
(j) The Registrant's Registration Statement No. 333-44450 on Form S-2
filed October 3, 2000, in which the terms, rights and provisions
applicable to Registrant's Common Stock are described.
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 offered have been
sold or which de-registers all of such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents, except as to any
portion of any future annual or quarterly report to stockholders or document
that is not deemed filed under such provisions. For the purposes of this
Registration Statement, any statement in a document incorporated by reference
shall be deemed to be modified or superseded to the extent that a statement
contained in this Registration Statement modifies or supersedes a statement in
such document. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Amended & Restated Certificate of Incorporation limits
the liability of directors to the maximum extent permitted by Delaware law.
Delaware law provides that a director of a corporation will not be personally
liable for monetary damages for beach of such individual's fiduciary duties as a
director except for liability (i) for any breach of such director's duty of
loyalty to the corporation, (ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the Delaware General Corporation Law, or (iv) for any
transaction from which a director derives an improper personal benefit.
The Registrant's Bylaws provide that the Registrant will indemnify its
directors and may indemnify its officers, employees and other agents to the full
extent permitted by law. The Registrant believes that indemnification under its
Bylaws covers at least negligence and gross negligence on the part of an
indemnified party and permits the Registrant to advance expenses incurred by an
indemnified party in connection with the defense of any action or proceeding
arising out of such party's status or service as a director, officer, employee
or other agent of the
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Registrant upon an undertaking by such party to repay such advances if it is
ultimately determined that such party is not entitled to indemnification.
Furthermore, the Registrant maintains liability insurance upon its
officers and directors.
The Registrant has entered into separate indemnification agreements with
each of its directors and officers. These agreements require the Registrant,
among other things, to indemnify such director or officer against expenses
(including attorneys' fees), judgments, fines and settlements (collectively,
"Liabilities") paid by such individual in connection with any action, suit or
proceeding arising out of such individual's status or service as a director or
officer of the Registrant (other than Liabilities arising from willful
misconduct or conduct that is knowingly fraudulent or deliberately dishonest)
and to advance expenses incurred by such individual in connection with any
proceeding against such individual with respect to which such individual may be
entitled to indemnification by the Registrant. The Registrant believes that its
Amended & Restated Certificate of Incorporation and Bylaw provisions and
indemnification agreements are necessary to attract and retain qualified persons
as directors and officers. (As noted in S-8 filed July 1996.)
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
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Number Description
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<S> <C>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation
(included in the Opinion filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants
23.3 Consent of Ernst & Young LLP, independent auditors, with respect to the
consolidated financial statements of the Registrant
24.1 Power of Attorney (included on the signature page)
99.1 1996 Stock Option/Stock Issuance Plan, as Amended and Restated as of
April 8, 1997, March 12, 1998 and November 3, 1998 (incorporated by
reference to Annex III to the Registrant's Definitive Proxy Statement on
Schedule 14A, filed on December 18, 1998).
99.2 Employee Stock Purchase Plan (incorporated by reference to the
Registrant's Registration Statement on Form S-8, Registration No.
333-07959, filed as of July 11, 1996).
</TABLE>
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ITEM 9. UNDERTAKINGS.
(a) 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 of 1933;
(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;
(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)(1)(i) and (a)(1)(ii) of this section do
not apply if the information required to be included in a post-effective
amendment by these 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 Securities Exchange Act of 1934 that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 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.
(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 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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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 Irvine, State of California, on December 21, 2000.
Radiance Medical Systems, Inc.
By: /s/ MICHAEL R. HENSON
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Michael R. Henson
Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of Radiance Medical Systems,
Inc., do hereby constitute and appoint Michael R. Henson and Stephen Kroll, and
each of them, our true and lawful attorneys-in-fact and agents, each with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments to this
Registration Statement, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting such attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or 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 each of
such attorneys-in-fact and agents, or his 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 date indicated.
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Signature Title Date
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<S> <C> <C>
/s/ MICHAEL R. HENSON Chief Executive Officer December 21, 2000
----------------------------- (Principal Executive and
Michael R. Henson Chairman)
/s/ STEPHEN R. KROLL Vice President, Finance and December 21, 2000
----------------------------- Administration, Chief
Stephen R. Kroll Financial Officer and
Secretary
(Principal Financial and
Accounting Officer)
/s/ FRANKLIN D. BROWN Director December 21, 2000
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Franklin D. Brown
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<TABLE>
<S> <C> <C>
/s/ WILLIAM G. DAVIS Director December 21, 2000
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William G. Davis
/s/ GERARD VON HOFFMANN Director December 21, 2000
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Gerard von Hoffmann
/s/ EDWARD M. LEONARD Director December 21, 2000
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Edward M. Leonard
/s/ JEFFREY F. O'DONNELL Director December 21, 2000
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Jeffrey F. O'Donnell
/s/ MAURICE BUCHBINDER, M.D. Director December 21, 2000
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Maurice Buchbinder, M.D.
</TABLE>
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EXHIBIT INDEX
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
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<S> <C>
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation
23.1 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation
(included in the Opinion filed as Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants
23.3 Consent of Ernst & Young LLP, independent auditors, with respect to the
consolidated financial statements of the Registrant
24.1 Power of Attorney (included on the signature page)
99.1 1996 Stock Option/Stock Issuance Plan, as Amended and Restated as of
April 8, 1997, March 12, 1998 and November 3, 1998 (incorporated by
reference to Annex III to the Registrant's Definitive Proxy Statement on
Schedule 14A, filed on December 18, 1998).
99.2 Employee Stock Purchase Plan (incorporated by reference to the
Registrant's Registration Statement on Form S-8, Registration No.
333-07959, filed as of July 11, 1996).
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