<PAGE>
Registration No. 333-________________
As filed with the Securities and Exchange Commission on September 27, 1999.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
IMAGE GUIDED TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
COLORADO 84-1139082
(State or other juris- (I.R.S. Employer
diction of incorporation Identification No.)
or organization)
5710-B FLATIRON PARKWAY
BOULDER, COLORADO 80301
(Address, including zip code of Principal Executive Offices)
IMAGE GUIDED TECHNOLOGIES, INC. STOCK OPTION AGREEMENT FOR PAUL L. RAY
IMAGE GUIDED TECHNOLOGIES, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
Paul L. Ray, Chief Executive Officer
Image Guided Technologies, Inc.
5710-B Flatiron Parkway
Boulder, Colorado 80301
(303) 447-0248
(Name, address and telephone number,
including area code, of agent for service)
----------------------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of each class of Amount to be Proposed maximum offering Proposed maximum Amount of
securities to be registered registered price per share aggregate offering price registration fee
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 138,689 shares 0.425 (1) $58,943 $16.39
value per share 200,000 shares 0.530 (2) $106,000 $29.47
Totals 338,689 shares $164,943 $45.86
</TABLE>
(1) These shares are issuable pursuant to the Registrant's Stock Purchase Plan.
The shares are purchasable at 85% of the market price (average of the bid
and ask price as reported by the NASDAQ Electronic Bulletin Board) of the
stock as of certain measurement dates. The registration fee has been
calculated pursuant to Rule 457(c) based upon the average of the bid and
ask price reported by the Nasdaq Electronic Bulletin Board as of September
21, 1999.
(2) These shares underlie options that have been issued pursuant to the
Registrant's Agreement for Paul L. Ray. The registration fee has been
calculated pursuant to Rule 457 (h)(1) based upon the exercise price of the
options granted pursuant to such plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents which have been filed with the Securities
and Exchange Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), are hereby incorporated by reference in this
Registration Statement:
(a) the Registrant's latest Annual Report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act;
(b) all other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the Annual
Report referred to in (a) above; and
(c) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
In addition, 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 termination of this offering 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 (such documents, and the documents
enumerated above, being hereinafter referred to as the "Incorporated
Documents"). Any statement contained in an Incorporated Document shall be
deemed to be modified or superseded for all purposes to the extent that a
statement contained in this Registration Statement or in any other
subsequently filed Incorporated Document or in any prospectus or prospectus
supplement modifies or supersedes such 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 Articles of Incorporation limit the liability of a
director of the Registrant to the Registrant and its shareholders for
monetary damages for breach of fiduciary duty to the fullest extent permitted
by the Colorado Business Corporation Act ("CBCA"). The CBCA permits
elimination of a directors personal liability for monetary damages for breach
of fiduciary duty, except (i) for breach of the director's duty of loyalty to
a corporation or its shareholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) for acts specified in Section 7-108-403 of the CBCA and (iv) for
transactions in which the director directly or indirectly derived an improper
personal benefit.
The Registrant's Bylaws provide that the Registrant shall indemnify
its officers and directors to the fullest extent permitted by the CBCA, as
amended from time to time. Subject to several exceptions, the CBCA provides
in part that a corporation shall have the power to indemnify any person made
a party to a proceeding (as defined in the CBCA) because such person is or
was a director or officer of the corporation or is or was serving at the
corporation's request in a representative capacity for another person or
entity, against liability incurred in the proceeding if the person conducted
himself or herself in good faith, and such person reasonably believed, in the
case of conduct in an official capacity, that his or her conduct was in the
corporation's best interests and in all other cases, that his or her conduct
was at least not opposed to the corporation's best interests. In addition, a
corporation is authorized to advance expenses to officers and directors
provided the officer or director furnishes to the corporation a written
affirmation of his or her good faith belief that he or she has met the
standard of conduct described above and the officer or director provides the
corporation with a written undertaking to repay the advance if it is
ultimately determined that he or she did not meet such standard of conduct.
Any indemnification may be made only as authorized in each specific case
after a determination has been made that indemnification is permissible by
the board of directors, a committee of the board of directors, the
shareholders or independent legal counsel as provided in the CBCA. Where an
officer or director is wholly successful, on the merits or otherwise, in the
defense of any proceeding, a corporation must
<PAGE>
indemnify him or her against reasonable expenses incurred. The Registrant
also maintains directors' and officers' liability coverage to insure
indemnification of its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Image Guided Technologies, Inc. Stock Option Agreement for
Paul L. Ray (1)
4.2 Image Guided Technologies, Inc. Employee Stock Purchase Plan (2)
5.1 Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C. regarding the
legality of the Common Stock being registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included in
the opinion filed as Exhibit 5.1).
25.1 Power of Attorney (included in Part II of this Registration
Statement under the caption "Signatures").
- -------------
(1) This Exhibit is incorporated by reference from Exhibit 10.35 of the
Registrant's Quarterly report on form 10-QSB filed August 16, 1999.
(2) This Exhibit is incorporated by reference from the Registrant's Definitive
Proxy Statement for its Annual Meeting of Shareholders held May 19, 1998,
as filed with the Commission on April 23, 1998 (Control No. 98599527).
ITEM 9. UNDERTAKINGS.
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 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.
b. That, for the purpose of determining any liability under the
Securities Act of 1933, each 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.
d. 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 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.
e. To deliver or cause to be delivered with the prospectus, to
each person to whom the prospectus is sent or given, the latest annual report
to security holders that is incorporated by reference in the prospectus and
furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule
14c-3 under the Exchange Act; and, where interim financial information
required to be presented by Article 3 of Regulation S-X is not set forth in
the prospectus, to deliver, or cause to be delivered to each person to whom
the prospectus is sent or given, the latest quarterly report that is
specifically incorporated by reference in the prospectus to provide such
interim financial information.
<PAGE>
f. 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.
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 Boulder, State of Colorado, on
September 24, 1999.
IMAGE GUIDED TECHNOLOGIES, INC.
By: /s/ Paul L. Ray
-------------------------------------
Paul L. Ray
CHAIRMAN OF THE BOARD, PRESIDENT AND
CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
The undersigned directors and/or officers of the Registrant, by
virtue of their signatures to this Registration Statement appearing below,
hereby constitute and appoint Paul L. Ray, with full power of substitution,
as attorney-in-fact in his name, place and stead to execute any and all
amendments to this Registration Statement in the capacities set forth
opposite their names and hereby ratify all that said attorney-in-fact may do
by virtue hereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
Signatures Title Date
---------- ----- ----
<S> <C> <C>
/s/ Paul L . Ray Chairman of the Board, President, September 24, 1999
- ------------------------- Chief Executive Officer
Paul L. Ray (Principal Executive Officer and
Principal Accounting Officer), and
Director
/s/ William G. Lyons Director September 14, 1999
- -------------------------
William G. Lyons
/s/ Terry R. Knapp Director September 24, 1999
- -------------------------
Terry R. Knapp
/s/ Clifford F. Frith Director September 24, 1999
- -------------------------
Clifford F. Frith
Director
- -------------------------
Tibor Foldvari
</TABLE>
<PAGE>
Exhibit 5.1
September 24, 1999
Image Guided Technologies, Inc.
5710-B Flatiron Parkway
Boulder, Colorado 80301
Ladies and Gentlemen:
We are counsel to Image Guided Technologies, Inc., a Colorado corporation
(the "Company"), and in such capacity have examined the Company's
Registration Statement on Form S-8 (the "Registration Statement"), being
filed with the Securities and Exchange Commission in connection with the
registration under the Securities Act of 1933, as amended, of the offering of
a maximum of 338,689 shares (the "Shares") of the Company's Common Stock, to
be issued pursuant to the Company's Stock Option Agreement with Paul L. Ray,
as amended and the Company's Employee Stock Purchase Plan (the "Plans"). We
are familiar with the proceedings undertaken by the Company in connection
with the authorization, reservation and registration of the Shares.
Additionally, we have examined such questions of law and fact as we have
considered necessary or appropriate for purposes of this opinion.
Based on the foregoing, we are of the opinion that the Shares have been duly
authorized and, upon issuance, delivery and payment therefor as contemplated
by the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
IRELAND, STAPLETON, PRYOR & PASCOE, P.C.
By: /s/ William E. Tanis
-----------------------------------
William E. Tanis, Vice President
<PAGE>
Exhibit 23.1
Consent of Independent Accountants
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated April 14, 1999, which appears on page 14 of
the Image Guided Technologies, Inc. Annual Report on Form 10KSB for the year
ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
Broomfield, Colorado
September 24, 1999
