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As filed with the Securities and Exchange Commission on November 18, 1996
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
XOMED SURGICAL PRODUCTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1393528
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
6743 Southpoint Drive North
Jacksonville, Florida 32216
(904) 296-9600
(Address, including zip code, and
telephone number, including area
code, of principal executive offices)
Second Amended and Restated Xomed Surgical Products, Inc. 1996 Stock Option Plan
(Full title of the plan)
James T. Treace
President and Chief Executive Officer
Xomed Surgical Products, Inc.
6743 Southpoint Drive North
Jacksonville, Florida 32216
(904) 296-9600
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
Proposed maximum
aggregate offering
Title of securities Proposed maximum price (1) Amount of
to be registered Amount to be offering price per registration fee
registered share (1)
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.01
par value per share
653,400 $22.375 $14,619,825 $4,430.25
</TABLE>
- ------------------------
(1) Estimated solely for calculating the amount of the registration
fee, pursuant to Rule 457(h) under the Securities Act of 1933
(the "Securities Act").
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PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, filed with the Securities and
Exchange Commission (the "Commission") by Xomed Surgical Products, Inc.,
a Delaware Corporation (the "Company"), are incorporated herein by reference:
(a) The Company's Prospectus filed in connection with its
Registration Statement on Form S-1 (Registration No. 333-10515)(the
"Form S-1"), filed on August 20, 1996, as amended by Amendments Nos.
1, 2, 3 and 4 filed on September 13, 1996, October 1, 1996,
October 10, 1996 and October 10, 1996, respectively, pursuant to the
Securities Act of 1933 as amended (the "Securities Act").
(b) The description of the common stock of the Company, par value
$.01 per share (the "Common Stock"), incorporated by reference
into the Company's Registration Statement on Form 8-A
(Registration No. 000-21517) filed on October 10, 1996
pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act") and contained in the Form S-1.
In addition, all documents filed by the Company with the
Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act subsequent to the date of this Registration Statement and prior to
the filing of a post-effective amendment which indicates that all the
securities offered hereby have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated herein by reference
and to be a part hereof from the date of the filing of such documents with the
Commission.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Restated Certificate of Incorporation (the
"Restated Certificate") provides that the Company shall indemnify each
person who is or was a director, officer or employee of the Company to
the fullest extent permitted under Section 145 of the Delaware General
Corporation Law. Section 145 of the Delaware
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General Corporation Law empowers a Delaware corporation to indemnify any
person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by
or in the right of such corporation) by reason of the fact that such person
is or was a director, officer, employee or agent of such corporation, or is
or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. A corporation may
indemnify such person against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. A corporation may, in advance of the final
disposition of any civil, criminal, administrative or investigative
action, suit or proceeding, pay the expenses (including attorneys' fees)
incurred by any officer or director in defending such action, provided that
the director or officer undertakes to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified by
the corporation.
A Delaware corporation may indemnify officers and directors in
an action by or in the right of the corporation to procure a judgment in its
favor under the same conditions, except that no indemnification is permitted
without judicial approval if the officer or director is adjudged to be
liable to the corporation. Where an officer or director is successful on
the merits or otherwise in the defense of any action referred to above, the
corporation must indemnify him against the expenses (including attorneys'
fees) which he actually and reasonably incurred in connection therewith. The
indemnification provided is not deemed to be exclusive of any other rights to
which an officer or director may be entitled under any corporation's by-law,
agreement, vote or otherwise.
The Restated Certificate provides that a director of the Company
will not be personally liable to the Company 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 Company 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, which concerns
unlawful payments of dividends, stock purchases or redemption, or (iv) for
any transaction from which the director derived an improper personal
benefit.
While the Restated Certificate provides directors with protection
from awards for monetary damages for breaches of their duty of care, it
does not eliminate such duty. Accordingly, the
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Restated Certificate will have no effect on the availability of equitable
remedies such as an injunction or rescission based on a director's breach of
his or her duty of care. The provisions of the Restated Certificate described
above apply to an officer of the Company only if he or she is a director
of the Company and is acting in his or her capacity as director, and do not
apply to officers of the Company who are not directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable
Item 8. EXHIBITS
Exhibit No.
4.1 Second Restated Certificate of Incorporation (incorporated by
reference to the Form S-1, Exhibit 3.1.2).
4.2 Restated By-Laws of the Company (incorporated by reference to
the Form S-1, Exhibit 3.2.2).
5 Opinion of Willkie Farr & Gallagher as to the validity of the
shares to be issued.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
24 Powers of Attorney (reference is made to the signature page
hereof).
Item 9. 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 this
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
this Registration Statement;
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(iii) to include any material information with respect
to the plan of distribution not previously
disclosed in this Registration Statement or any
material change to such information in this
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 Company
pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this 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 therein,
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 Act, each filing of the
Company's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this 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.
3. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise,
the Company 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
Company of expenses incurred or paid by a director, officer or controlling
person of the Company 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 Company 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, 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 Jacksonville, State of Florida, on
the 18th day of November, 1996.
XOMED SURGICAL PRODUCTS, INC.
By: /s/ James T. Treace
James T. Treace
President and
Chief Executive Officer
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Each of the undersigned officers and directors of Xomed Surgical
Products, Inc. hereby severally constitutes and appoints James T. Treace, F.
Barry Bays and Thomas E. Timbie, and each of them, as the true and lawful
attorneys-in-fact for the undersigned, in any and all capacities, with full
power of substitution, to sign any and all amendments to this Registration
Statement (including post-effective amendments), and to file the same with
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact, 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 or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact, or either of them,
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.
Signature Title Date
/s/ James T. Treace President, Chief Executive November 18, 1996
- ------------------------ Officer and Chairman of the
James T. Treace Board of Directors (Principal
Executive Officer)
Vice President, Finance and
/s/ Thomas E. Timbie Chief Financial Officer November 18, 1996
- ------------------------ (Principal Financial and
Thomas E. Timbie Accounting Officer)
/s/ Richard B. Emmitt Director November 18, 1996
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Richard B. Emmitt
/s/ Paul H. Klingenstein Director November 18, 1996
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Paul H. Klingenstein
/s/ William R. Miller Director November 18, 1996
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William R. Miller
/s/ Rodman W. Moorhead, III Director November 18, 1996
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Rodman W. Moorhead, III
/s/ James E. Thomas Director November 18, 1996
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James E. Thomas
/s/ Elizabeth H. Weatherman Director November 18, 1996
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Elizabeth H. Weatherman
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INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
5 Opinion of Willkie Farr & Gallagher as to the validity of
the shares to be issued.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Willkie Farr & Gallagher (contained in Exhibit 5).
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EXHIBIT 5
November 18, 1996
Xomed Surgical Products, Inc.
6743 Southpoint Drive North
Jacksonville, Florida 32216
Ladies and Gentlemen:
We have acted as counsel to Xomed Surgical Products, Inc. (the "Company"), a
corporation organized under the laws of the State of Delaware, with respect to
the Company's Registration Statement on Form S-8 (the "Registration Statement")
to be filed by the Company with the Securities and Exchange Commission on
November 18, 1996, in connection with the registration under the Securities Act
of 1933, as amended (the "Act"), by the Company of an aggregate of 653,400
shares (the "Shares") of Common Stock, par value $.01 per share (the "Common
Stock"), issuable pursuant to the Second Amended and Restated Xomed Surgical
Products, Inc. 1996 Stock Option Plan (the "Plan").
We have examined and are familiar with originals or copies, certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments relating to the incorporation of the Company and to the
authorization and issuance of the Shares, and have made such investigations of
law, as we have deemed necessary and advisable. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity to authentic originals of all
documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that:
1. The Company is duly incorporated and validly existing under the laws
of the State of Delaware; and
2. The Shares have been duly authorized for issuance and, when issued in
connection with the terms of the Plan, will constitute duly authorized,
validly issued, fully paid and nonassessable shares of Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above. We do not admit by giving this consent
that we are in the category of persons whose consent is required under Section 7
of the Act.
Very truly yours,
/s/ Willkie Farr & Gallagher
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Second Amended and Restated Xomed Surgical Products,
Inc. 1996 Stock Option Plan of our reports dated June 19, 1996, except for the
4th paragraph of footnote No.8 for which the date is September 3, 1996, May 31,
1996, and May 31, 1996 related to Xomed Surgical Products, Inc., Xomed, Inc.,
and TreBay Medical Corporation, respectively, included in the Form S-1
(Registration No. 333-10515) of Xomed Surgical Products, Inc. filed with
the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Jacksonville, Florida
November 14, 1996
