<PAGE>
As filed with the Securities and Exchange Commission on September 12, 1997
Registration No. 333-
================================================================================
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)
Third 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)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
<S> <C> <C> <C> <C>
Title of securities Proposed maximum Proposed maximum Amount of
to be registered Amount to be offering price per aggregate offering registration fee
registered (1) share (2) price (2)
- ----------------------- ---------------------- ------------------------- --------------------- ----------------------
Common Stock, $.01
par value per share 300,000 $19.6875 $5,906,250 $1,790
- ------------------------
</TABLE>
(1) Represents the additional shares of Common Stock issuable under
Xomed Surgical Products, Inc.'s Third Amended and Restated 1996
Stock Option Plan.
(2) Estimated solely for calculating the amount of the registration
fee, pursuant to Rule 457(h) under the Securities Act of 1933, as
amended (the "Securities Act").
---------
Pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, the Prospectus related to this Registration Statement is
a combined Prospectus which also relates to Registration Statement No.
333-16267, previously filed by the Registrant on Form S-8, as to which 579,050
shares of Common Stock having an aggregate offering price of $12,956,243 (for
which a registration fee of $3,927 was paid) remain unsold. This Registration
Statement also constitutes Post-Effective Amendment No. 1 with respect to the
Registrant's Registration Statement No. 333-16267 and such Post-Effective
Amendment shall hereafter become effective concurrently with the effectiveness
of this Registration Statement in accordance with Section 8(c) of the Securities
Act of 1933.
<PAGE>
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 Annual Report on Form 10-K for the fiscal year ended
December 31, 1996, filed pursuant to the Securities Exchange Act of
1934 (the "Exchange Act");
(b) The Company's Quarterly Report on Form 10-Q, for the quarterly
period ended March 29, 1997, filed pursuant to the Exchange Act;
(c) The Company's Quarterly Report on Form 10-Q, for the quarterly
period ended June 28, 1997, filed pursuant to the Exchange Act;
(d) 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 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
<PAGE>
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Second 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 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,
<PAGE>
(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 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.
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
<PAGE>
fundamental change in the information set forth in this
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 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.
<PAGE>
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 12th day of
September, 1997.
XOMED SURGICAL PRODUCTS, INC.
By: /s/ James T. Treace
James T. Treace
President and
Chief Executive Officer
<PAGE>
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, as amended,
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 September 12, 1997
- ------------------------ Officer and Chairman of the
James T. Treace Board of Directors (Principal
Executive Officer)
/s/ Thomas E. Timbie Vice President, Finance and September 12, 1997
- ------------------------ Chief Financial Officer
Thomas E. Timbie (Principal Financial and
Accounting Officer)
/s/ Richard B. Emmitt Director September 12, 1997
- ------------------------
Richard B. Emmitt
/s/ Paul H. Klingenstein Director September 12, 1997
- ------------------------
Paul H. Klingenstein
/s/ William R. Miller Director September 12, 1997
- -------------------------
William R. Miller
Director September 12, 1997
- ---------------------------
Rodman W. Moorhead, III
/s/ James E. Thomas Director September 12, 1997
- -------------------------
James E. Thomas
/s/ Elizabeth H. Weatherman Director September 12, 1997
- ---------------------------
Elizabeth H. Weatherman
<PAGE>
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).
<PAGE>
EXHIBIT 5
September 12, 1997
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
September 12, 1997, in connection with the registration under the Securities Act
of 1933, as amended (the "Act"), by the Company of an aggregate of 300,000
shares (the "Shares") of Common Stock, par value $.01 per share (the "Common
Stock"), issuable pursuant to the Third 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
<PAGE>
EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 to register 300,000 shares of common stock pertaining to the Third
Amended and Restated Xomed Surgical Products, Inc. 1996 Stock Option Plan of our
report dated February 26, 1997, with respect to the consolidated financial
statements of Xomed Surgical Products, Inc. and Subsidiaries included in its
Annual Report (Form 10-K) for the year ended December 31, 1996 filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
September 11, 1997
Jacksonville, Florida
