<PAGE>
As filed with the Securities and Exchange Commission on December 24, 1997
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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SOMNUS MEDICAL TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0423465
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(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
285 N. WOLFE ROAD
SUNNYVALE, CA 94028
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
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AMENDED AND RESTATED 1996 STOCK PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
1997 DIRECTOR OPTION PLAN
(FULL TITLE OF THE PLANS)
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STUART D. EDWARDS
CHIEF EXECUTIVE OFFICER
SOMNUS MEDICAL TECHNOLOGIES, INC.
285 N. WOLFE ROAD
SUNNYVALE, CA 94028
(408) 773-9121
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
--------------------
Copy to:
JOHN T. SHERIDAN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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<PAGE>
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.001 par value 2,436,974 shares(1) 2.26(2) $ 5,507,561.24(3) $1,624.73
Common Stock,
$0.001 par value 781,507 shares(4) 11.06(5) $ 8,645,421.19 $2,550.40
Common Stock,
$0.001 par value 50,000 shares(6) 9.40(7) $ 470,000.00 $ 138.70
TOTAL 3,268,481 shares -- $14,696,091.65 $4,313.83
===========================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals. This subtotal represents the sum of shares
issuable upon exercise of presently outstanding options (options that have
been granted as of the date of this Registration Statement) issued under the
Amended and Restated 1996 Stock Plan (the "Option Plan").
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the total registration fee.
Computation based on the weighted average exercise price (rounded to nearest
cent) at which the options outstanding whose exercise will result in the
issuance of the shares being registered may be exercised.
(3) Calculated in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note 1 above.
(4) This subtotal represents the sum of shares issuable upon exercise of options
that have not yet been granted under the 1997 Director Option Plan and the
Option Plan as of the date of this Registration Statement. Of the total of
781,507 shares that will be issuable upon the exercise of such options to be
granted in the future, 350,000 shares will be issuable upon exercise of
options to be granted in the future under the 1997 Director Option Plan and
431,507 shares will be issuable upon exercise of options to be granted in
the future under the Option Plan.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon the average
of the high and low prices of the Common Stock as reported in The Nasdaq
Stock Market on December 22, 1997.
(6) This subtotal represents the number of shares authorized to be issued under
the 1997 Employee Stock Purchase Plan.
(7) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon 85% (see
explanation in following sentence) of the average of the high and low prices
of the Common Stock as reported in The Nasdaq Stock Market on December 22,
1997. Pursuant to the 1997 Employee Stock Purchase Plan, which plan is
incorporated by reference herein, the purchase price of a share of Common
Stock shall be an amount equal to 85% of the fair market value of a share of
Common Stock on the Enrollment Date or the Exercise Date (as defined in such
plan), whichever is lower.
-ii-
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SOMNUS MEDICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by Somnus Medical
Technologies, Inc. (the "Company") with the Securities and Exchange Commission:
(1) The Company's Registration Statement on Form S-1 (file no. 333-35401)
under the Securities Act of 1933, as amended (the "Securities Act"), and as
declared effective on November 5, 1997.
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section 12(g) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
declared effective on November 5, 1997.
(3) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES.
-------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
--------------------------------------
Certain member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, and investment partnerships of which such persons are partners
beneficially own 138,333 shares of the Registrant's Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
-----------------------------------------
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power 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 the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him 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." With respect to
<PAGE>
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power 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 or suit by or in the right of the corporation to procure a judgment in
its favor . . . [by reason of his service in one of the capacities specified in
the preceding sentence] against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit 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
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper."
The Company's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Company's Bylaws provide that the Company shall indemnify to the full
extent authorized by law each of its directors, officers, employees and other
agents against expenses actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that such person is or was an agent of
the corporation.
The Company has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in the
Company's Bylaws, and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable
ITEM 8. EXHIBITS.
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Exhibit Description
Number
4.1* Amended and Restated 1996 Stock Plan and form of agreement thereunder.
4.2* 1997 Director Option Plan and form of agreement thereunder.
4.3* 1997 Employee Stock Purchase Plan and forms of agreements thereunder.
5.1 Opinion of counsel as to the legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see page II-4).
- ---------------
* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 333-35401), and as declared effective on
November 5, 1997.
II-2
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ITEM 9. UNDERTAKINGS.
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A. The Company hereby undertakes:
(1) 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 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.
B. 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 Corporation Law, the Company's Restated
Certificate of Incorporation, the Company's Bylaws or the Company's
indemnification agreements, the Company has been informed that in the opinion of
the Securities and Exchange 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 a successful defense of any action, suit
or proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, the Company will,
unless in the opinion of its counsel the question has already been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of 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.
II-3
<PAGE>
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 this 23rd day of
December, 1997.
SOMNUS MEDICAL TECHNOLOGIES, INC.
By: /s/ Stuart D. Edwards
---------------------
Stuart D. Edwards
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stuart D. Edwards and Robert E. McNamara,
jointly and severally, as his or her attorneys-in-fact, with full power of
substitution in each, for him or her in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with all exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitutes, may 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ Stuart D. Edwards President, Chief Executive Officer and December 23, 1997
- -------------------------- Director (Principal Executive Officer)
(Stuart D. Edwards)
/s/ Robert E. McNamara Chief Financial Officer December 23, 1997
- -------------------------- (Principal Financial and Accounting Officer)
(Robert E. McNamara)
/s/ Eric N. Doelling Director December 23, 1997
- --------------------------
(Eric N. Doelling)
/s/ David L. Douglass Director December 23, 1997
- --------------------------
(David L. Douglass)
/s/ David J. Illingworth Director December 23, 1997
- --------------------------
(David J. Illingworth)
Director
- --------------------------
(Ronald G. Lax)
/s/ David B. Musket Director December 23, 1997
- --------------------------
(David B. Musket)
/s/ Woodrow A. Myers Director December 23, 1997
- --------------------------
(Woodrow A. Myers)
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
Number
4.1* Amended and Restated 1996 Stock Plan and form of agreement thereunder.
4.2* 1997 Director Option Plan and form of agreement thereunder.
4.3* 1997 Employee Stock Purchase Plan and forms of agreements thereunder.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Power of Attorney (see page II-4).
* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 333-35401), and as declared effective on
November 5, 1997.
<PAGE>
EXHIBIT 5.1
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[LETTERHEAD OF WILSON SONSINI GOODRICH & ROSATI]
December 23, 1997
Somnus Medical Technologies, Inc.
285 N. Wolfe Road
Sunnyvale, CA 94086
RE: REGISTRATION STATEMENT ON FORM S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on December 24, 1997 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of 3,268,481 shares of your Common Stock,
par value $0.001 per share (the "Shares"), (i) 2,436,974 shares of which are
subject to currently outstanding options under the Amended and Restated 1996
Stock Plan, (ii) 781,507 shares of which are to be issued pursuant to options
under the Amended and Restated 1996 Stock Plan, (iii) 350,000 shares of which
are to be issued pursuant to options under the 1997 Director Option Plan and
(iv) 50,000 shares of which are to be issued pursuant to the 1997 Employee Stock
Purchase Plan (collectively, the "Plans"). As your counsel in connection with
this transaction, we have examined the proceedings taken and are familiar with
the proceedings proposed to be taken by you in connection with the issuance and
sale of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each grant under the Plans,
the Shares will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.2
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Independent Auditors' Consent
-----------------------------
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the Amended and Restated 1996 Stock Plan, the 1997
Employee Stock Purchase Plan and the 1997 Director Option Plan of our report
dated March 7, 1997, except for Note 8, as to which the date is September 4,
1997 with respect to the consolidated financial statements of Somnus Medical
Technologies, Inc. as of December 31, 1996, included in the Registration
Statement on Form S-1 (No. 333-35401) filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Palo Alto, California
December 23, 1997
