<PAGE>
As filed with the Securities and Exchange Commission on September 24, 1999
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
__________________
SOMNUS MEDICAL TECHNOLOGIES, INC.
(Exact name of Registrant as specified in its charter)
__________________
Delaware 77-0423465
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
285 N. Wolfe Road
Sunnyvale, CA 94086
(408) 773-9121
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
__________________
Amended and Restated 1996 Stock Plan
1997 Employee Stock Purchase Plan
1997 Director Option Plan
1997 Patent Incentive Plan
(Full title of the plans)
__________________
John G. Schulte
Chief Executive Officer and President
Somnus Medical Technologies, Inc.
285 N. Wolfe Road
Sunnyvale, CA 94086
(408) 773-9121
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
__________________
Copy to:
David J. Saul, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(650) 493-9300
__________________
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum
Maximum Amount Offering Aggregate Amount of
Title of Securities to to be Price Offering Registration
be Registered Registered Per Share Price Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$0.001 par value....................... 942,060 shares(1) $ 2.65625(2) $2,502,346.88 $695.65
Common Stock
$0.001 par value....................... 142,507 shares(3) $ 2.25781(4) $ 321,754.09 $ 89.45
TOTAL: 1,084,567 shares $2,824,100.97 $786
</TABLE>
(1) This total represents the sum of shares issuable upon exercise of options
that have not yet been granted under the Amended and Restated 1996 Stock
Plan, 1997 Director Option Plan and 1997 Patent Incentive Plan. Of the
total of 942,060 shares that will be issuable upon the exercise of such
options to be granted in the future, 852,060 shares will be issuable upon
exercise of options to be granted in the future under the Amended and
Restated 1996 Stock Plan, 85,000 shares will be issuable upon exercise of
options to be granted in the future under the 1997 Director Option Plan,
and 5,000 shares will be issuable upon exercise of options to be granted in
the future under the 1997 Patent Incentive Plan.
(2) 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 Registrant's Common Stock as reported by
The Nasdaq Stock Market on September 22, 1999 because the price at which
the options to be granted in the future may be exercised is not currently
determinable.
(3) This subtotal represents the number of shares authorized to be issued under
the 1997 Employee Stock Purchase Plan.
(4) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
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 by The
Nasdaq National Market on September 22, 1999. Pursuant to the 1998
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.
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<PAGE>
SOMNUS MEDICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
STATEMENT UNDER GENERAL INSTRUCTION E - REGISTRATION OF ADDITIONAL SECURITIES
The Registrant previously filed two Registration Statements on Form S-8
with the Securities and Exchange Commission (SEC File Nos. 333-43325 and 333-
57983) (the Previous Forms S-8). These Previous Forms S-8 were filed in
connection with the Amended and Restated 1996 Stock Plan, 1997 Director Option
Plan and 1997 Employee Stock Purchase Plan (collectively the "Plans"). This
Registration Statement registers additional shares of the Registrant's Common
Stock to be issued pursuant to the Amended and Restated 1996 Stock Plan, 1997
Director Option Plan and 1997 Employee Stock Purchase Plan. Accordingly, the
contents of the Previous Forms S-8, including periodic reports that the
Registrant filed after the Previous Forms S-8 to maintain current information
about the Registrant, are incorporated by reference into this Registration
Statement pursuant to General Instruction E of Form S-8. The reports the
Registrant has most recently filed with the SEC are listed below:
- Quarterly Report on Form 10-Q for the quarterly period ended
June 30, 1999, filed pursuant to Section 13 of the Exchange
Act on August 16, 1999.
- Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1999, filed pursuant to Section 13 of the Exchange
Act on May 17, 1999.
- Annual Report on Form 10-K for the fiscal year ended December
31, 1998, filed pursuant to Section 13 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act) on March
31, 1999.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 8. Exhibits.
--------
Exhibit
Number Description
----------- --------------------------------------------------------
4.1* Amended and Restated 1996 Stock Plan and form of agreement
thereunder.
4.2** 1997 Employee Stock Purchase Plan.
4.3*** 1997 Director Option Plan.
4.4 1997 Patent Incentive Plan.
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-2).
- -----------------------------
* Incorporated by reference to Exhibit 10.2 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
** Incorporate by reference to Exhibit 10.12 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
*** Incorporate by reference to Exhibit 10.13 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 24th day of
September, 1999.
SOMNUS MEDICAL TECHNOLOGIES, INC.
By: /s/ John G. Schulte
----------------------------------------
John G. Schulte, Chief Executive Officer
and President (Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John G. Schulte and Robert D. McCulloch,
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, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
/s/ John G. Schulte Chief Executive Officer, September 24, 1999
- -------------------------------
John G. Schulte President and Director
(Principal Executive Officer)
/s/ Robert D. McCulloch Vice President of Finance and September 24, 1999
- -------------------------------
Robert D. McCulloch Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Abhi Acharya, Ph.D. Director September 24, 1999
- -------------------------------
Abhi Acharya, Ph.D.
/s/ Gary R. Bang Director September 24, 1999
- -------------------------------
Gary R. Bang
/s/ David L. Douglass Director September 24, 1999
- -------------------------------
David L. Douglass
/s/ Stuart D. Edwards Director September 24, 1999
- -------------------------------
Stuart D. Edwards
/s/ David B. Musket Director September 24, 1999
- -------------------------------
David B. Musket
/s/ Woodrow A. Myers, Jr., M.D. Director September 24, 1999
- -------------------------------
Woodrow A. Myers, Jr., M.D.
II-2
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
Number
- ------------- -----------------------------------------------------------------
4.1* Amended and Restated 1996 Stock Plan and form of agreement
thereunder.
4.2** 1997 Employee Stock Purchase Plan.
4.3*** 1997 Director Option Plan.
4.4 1997 Patent Incentive Plan.
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-2).
- --------------------------------
* Incorporated by reference to Exhibit 10.2 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
** Incorporate by reference to Exhibit 10.12 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
*** Incorporate by reference to Exhibit 10.13 filed with the Company's
Registration Statement on Form S-1 (file no. 333-35401), as declared effective
on November 5, 1997.
<PAGE>
Exhibit 4.4
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SOMNUS MEDICAL TECHNOLOGIES, INC.
1997 PATENT INCENTIVE PLAN
Section 1. Establishment and Purpose
- -------------------------------------
1.1 Purpose. Somnus Medical Technologies, Inc. (the "Company")
-------
hereby establishes the Somnus Medical Technologies, Inc. Patent Incentive Plan
(the "Plan"). The Plan is intended to motivate, reward and provide additional
incentive to eligible Employees of the Company, upon whose ideas and efforts,
the Company are largely dependent.
1.2 Effective Date. The Plan is effective as of July 15, 1997.
--------------
Section 2. Definitions
- -----------------------
Defined Terms. When used in the Plan, the following terms shall have the
-------------
meanings specified below:
2.1 "Administrator" means the Board or the Committee as shall be
-------------
administering the Plan, in accordance with Section 5 of the Plan.
2.2 "Award" shall mean an award of cash or Shares granted under the
-----
Plan.
2.3 "Board" means the Company's Board of Directors.
-----
2.4 "Committee" means the Patent Review Committee.
---------
2.5 "Company" means Somnus Medical Technologies, Inc.
-------
2.6 "Employee" means any regular full-time employee of the Company.
--------
2.7 "Invention Disclosure" means legal documentation of the
--------------------
invention describing the utility, structural and functional nature of the
invention.
2.8 "Participant" means an Employee who receives an Award under the
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Plan.
2.9 "Share" means a share of common stock of the Company, as
-----
adjusted in accordance with Section 6 of the Plan.
Section 3. Grant of Award
- --------------------------
3.1 Eligibility. Only Employees are eligible to receive an Award
-----------
under the Plan. The Administrator may grant more than one Award to an Employee.
3.2 Procedure for Grant.
-------------------
<PAGE>
(a) Each Employee whose Invention Disclosure is approved by the
Employee's department head shall be granted an Award of cash in the amount of
$200.
(b) Upon approval by the Employee's department head, the Invention
Disclosure shall be submitted to the Committee. Within ten business days, the
Committee shall review the Invention Disclosure. In the event that the
Committee selects the Invention Disclosure as the subject of an application for
a patent, and such application is filed, the Employee shall be granted an Award
of 100 Shares.
(c) At such time as the patent issues, the Employee shall be granted
an Award of 400 Shares and shall receive a personalized patent plaque.
Section 4. Payment of Awards
- -----------------------------
4.1 Right to Receive Payment. Any Award that may become due under
------------------------
this Plan shall be made solely from the general assets of the Company. Nothing
in this Plan shall be construed to create a trust or to establish or evidence
any Participant's claim of any right other than as an unsecured general creditor
with respect to any payment to which he or she may be entitled.
4.2 Timing of Payment. Awards shall be paid as soon as practicable
-----------------
after grant.
4.3 Beneficiaries. If permitted by the Committee, each Participant
-------------
may designate, in writing and on such form as the Company may prescribe, one or
more beneficiaries to receive any Award that is payable after the individual's
death. In the event of a Participant's death, any Award that is payable to such
Participant shall be paid to his or her beneficiary or, in the event that no
beneficiary has been designated, to his or her estate.
Section 5. Administration
- --------------------------
5.1 Administration. The Plan shall be administered by the
--------------
Administrator.
5.2 Powers of the Administrator. Subject to the provisions of the
---------------------------
Plan, and in the case of the Committee, subject to the specific duties delegated
by the Board to such Committee, the Administrator shall have the authority, in
its discretion:
(a) to select the Employees to whom Awards may be granted
hereunder;
(b) to determine the terms and conditions, not inconsistent with
the terms of the Plan, of any Award. Such terms and conditions include, but are
not limited to, any restriction or limitation regarding any Award or the Shares
relating thereto, based in each case on such factors as the Administrator, in
its sole discretion, shall determine;
(c) to construe and interpret the terms of the Plan and Awards
granted pursuant to the Plan;
(d) to modify and amend each Award;
(e) to make all other determinations deemed necessary or
advisable for administering the Plan.
<PAGE>
5.3 Effect of Administrator's Decision. The Administrator's
----------------------------------
decisions, determinations and interpretations shall be final and binding on all
Participants and any other holders of Awards.
Section 6. Shares Subject to the Plan.
- --------------------------------------
6.1 Number of Shares. Subject to adjustment as provided in Section
----------------
6.3, the total number of Shares available for grant under the Plan shall not
exceed 5,000. Shares granted under the Plan may be either authorized but
unissued Shares or treasury Shares.
6.2 Lapsed Awards. If an Award of Shares (or portion thereof) is
-------------
cancelled, terminates, expires or lapses for any reason, any Shares subject to
such Award again shall be available to be the subject of an Award of Shares.
6.3 Adjustments in Awards and Authorized Shares. In the event of
-------------------------------------------
any merger, reorganization, consolidation, recapitalization, separation,
liquidation, stock dividend, split-up, Share combination, or other change in the
corporate structure of the Company affecting the Shares, the Board shall adjust
the number and class of Shares which may be delivered under the Plan, and the
number and class of Shares subject to outstanding Awards, in such manner as the
Administrator (in its sole discretion) shall determine to be appropriate to
prevent the dilution or diminution of such Awards of Shares. Notwithstanding
the foregoing, the number of Shares subject to any Award of Shares shall always
be a whole number.
Section 7. General Provisions
- ------------------------------
7.1 Tax Withholding. The Company shall withhold all applicable
---------------
taxes required by law from any payment, including any federal, FICA, state and
local taxes.
7.2 Nonassignability. Prior to the time of any payment under the
----------------
Plan, a Participant shall have no right by way of anticipation or otherwise to
assign or transfer any interest under this Plan.
7.3 Employment Rights/Participation. The establishment and
-------------------------------
subsequent operation of the Plan, including eligibility as a Participant, shall
not be construed as conferring any legal or other rights upon any Participant or
any other individual for the continuation of his or her employment with the
Company. Subject to any written employment contract signed by an authorized
officer or director of the Company which specifically includes any limitation on
the Company's right, the Company expressly reserves the right, which may be
exercised at any time, to discharge any individual and/or treat him or her
without regard to the effect which such treatment might have upon him or her as
a Participant in this Plan. Receiving an Award under the Plan does not confer
any right to be named as a Participant and receive any succeeding Award.
7.4 No Individual Liability. No member of the Committee or the
-----------------------
Board, or any officer of the Company, shall be liable for any determination,
decision or action made in good faith with respect to the Plan or any Award made
under the Plan.
7.5 Severability; Governing Law. If any particular provision of
---------------------------
this Plan is found to be invalid or unenforceable, such provision shall not
affect the other provisions of the Plan, but the Plan shall be construed in all
respects as if such invalid provision had been omitted. The provisions of the
Plan shall be governed by and construed in accordance with the laws of the State
of California (with the exception of its conflict of laws provisions).
<PAGE>
7.6 Affiliates of the Company. Requirements referring to
-------------------------
employment with the Company or payment of Awards can be performed through the
Company or any affiliate of the Company.
Section 8. Amendment and Termination
- -------------------------------------
8.1 Amendment and Termination. The Board shall have the power to
-------------------------
amend, suspend or terminate the Plan at any time, provided that no such
amendment or termination shall adversely impair a Participant's right with
respect to an Award that has been granted.
<PAGE>
Exhibit 5.1
-----------
September 24, 1999
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 September 24, 1999 (the
"Registration Statement"), in connection with the registration under the
Securities Act of 1933, as amended, of an aggregate of 1,084,567 shares of your
Common Stock, par value $0.001 per share (the "Shares"), (i) 852,060 shares of
which are reserved for issuance pursuant to the Amended and Restated 1996 Stock
Plan, as amended, (ii) 142,507 shares of which are reserved for issuance
pursuant to the 1997 Employee Stock Purchase Plan, (iii) 85,000 shares of which
are reserved for issuance pursuant to the 1997 Director Option Plan and (iv)
5,000 shares of which are to be issued pursuant to the 1997 Patent Incentive
Plan (collectively, the "Plans"). As legal counsel for Somnus Medical
Technologies, Inc., 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 the Shares, when issued and sold in the manner
described in the Plans and pursuant to the agreement that accompanies each grant
under the Plans, 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
------------
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, the 1997 Director Option Plan and the 1997 Patent
Incentive Plan of our report dated February 2, 1999, with respect to the
consolidated financial statements of Somnus Medical Technologies, Inc. included
in its Annual Report (Form 10-K) for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Palo Alto, California
September 24, 1999
