<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 1997
REGISTRATION NO. 333-___________
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VISTA MEDICAL TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 94-3184035
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5451 AVENIDA ENCINAS, SUITE A
CARLSBAD, CALIFORNIA 92008
(Address of Principal Executive Office) (Zip Code)
----------------------
1997 STOCK OPTION/STOCK ISSUANCE PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
----------------------
JOHN R. LYON
Chief Executive Officer
VISTA MEDICAL TECHNOLOGIES, INC.
5451 AVENIDA ENCINAS, SUITE A
CARLSBAD, CALIFORNIA 92008 (760) 603-9120
(Name, address and telephone number, including area code, of agent for service)
----------------------
Copies to:
Craig S. Andrews, Esq.
BROBECK, PHLEGER & HARRISON LLP
550 West C Street, Suite 1300
San Diego, California 92101
(619) 234-1966
----------------------
This Registration Statement shall become effective immediately
upon filing with the Securities and Exchange Commission
and sales of the registered securities will begin as soon
as reasonably practicable after such effective date.
----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------
Title of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate Amount of
be registered registered per share offering price registration fee
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $0.01 par value
per share (under 1997 Stock
Option/Stock Issuance Plan) 2,820,000(1) $10.00(2) $28,200,000(2) $8,546
Common Stock, $0.01 par value
per share (under Employee
Stock Purchase Plan) 200,000(1) $10.00(2) $2,000,000(2) $607
</TABLE>
- --------------------------------------
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1997 Stock Option/Stock Issuance
Plan and the Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of the
Company's outstanding shares of Common Stock.
(2) Estimated solely for the purposes of computing the amount of registration
fee in accordance with Rule 457(c) under the Securities Act of 1933, as amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Vista Medical Technologies, Inc. (the "Registrant" or "Company") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Registrant's Prospectus filed March 7, 1997 with the Registrant's
Registration Statement No. 333-22985 on Form S-1, as amended, under the
Securities Act of 1933, as amended (the "Securities Act"), in which there
is set forth the Registrant's audited financial statements for the fiscal
year ended December 31, 1996.
(b) the Registrant's Registration Statement on Form 8-A filed June 24,
1997, with the Commission pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), in which there is described
the terms, rights and provisions applicable to the Registrant's outstanding
Common Stock.
All documents filed by Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into this
Registration Statement and to be a 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
The validity of the Common Stock offered hereby will be passed upon for the
Company by Brobeck, Phleger & Harrison LLP, San Diego, California. Members of
such firm own a total of 7,500 shares of the Company's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits indemnification
of officers and directors of the Company under certain conditions and subject to
certain limitations. Section 145 of the Delaware General Corporation Law also
provides that a corporation has the power to purchase and maintain insurance on
behalf of its officers and directors against any liability asserted against such
person and incurred by him or her in such capacity, or arising out of his or her
status as such, whether or not the corporation would have the power to indemnify
him or her against such liability under the provisions of Section 145 of the
Delaware General Corporation Law.
Article VII, Section (i) of the Restated Bylaws of the Company provides
that the Company shall indemnify its directors and executive officers to the
fullest extent not prohibited by the Delaware General Corporation Law. The
rights to indemnity thereunder continue as to a person who has ceased to be a
director, officer, employee or agent and inure to the benefit of the heirs,
executors and administrators of the person. In addition, expenses incurred by a
director or officer in defending any civil, criminal, administrative
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or investigative action, suit or proceeding by reason of the fact that he or she
is or was a director or officer of the Company (or was serving at the Company's
request as a director or officer of another corporation), shall be paid by the
Company in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to
repay such amount if it shall ultimately be determined that he or she is not
entitled to be indemnified by the Company as authorized by the relevant section
of the Delaware General Corporation Law.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law,
Article 5, Section (a) of the Company's Second Restated Certificate of
Incorporation provides that a director of the Company shall not be personally
liable 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
acts or omissions that involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the Delaware General Corporation Law or (iv) for
any transaction from which the director derived any improper personal benefit.
The Company has entered into indemnification agreements with each of its
officers and directors. Generally, the indemnification agreements attempt to
provide the maximum protection permitted by Delaware law as it may be amended
from time to time. Under such additional indemnification provisions, however,
an individual will not receive indemnification for judgments, settlements or
expenses if he or she is found liable to the Company (except to the extent the
court determines he or she is fairly and reasonably entitled to indemnity for
expenses), for settlements not approved by the Company or for settlements and
expenses if the settlement is not approved by the court. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending any such action, suit or proceeding. In order to
receive an advance of expenses, the individual must submit to the Company copies
of invoices presented to him or her for such expenses. Also, the individual
must repay such advances upon a final judicial decision that he or she is not
entitled to indemnification.
The Company intends to purchase directors' and officers' liability
insurance.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
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<PAGE>
Item 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
*4.1 Second Restated Certificate of Incorporation of the Company
(Exhibit 3.2).
*4.2 Restated Bylaws of the Company (Exhibit 3.4).
*4.3 Form of Certificate for Common Stock (Exhibit 4.1).
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in
Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
*99.1 1997 Stock Option/Stock Issuance Plan, as amended (Exhibit
10.38).
*99.2 1997 Stock Option/Stock Issuance Plan Form of Notice of
Grant (Exhibit 10.39).
*99.3 1997 Stock Option/Stock Issuance Plan Form of Stock Option
Agreement (Exhibit 10.40).
*99.4 1997 Stock Option/Stock Issuance Plan Form of Stock Purchase
Agreement (Exhibit 10.41).
*99.5 1997 Stock Option/Stock Issuance Plan Form of Stock Issuance
Agreement (Exhibit 10.46).
*99.6 Employee Stock Purchase Plan (Exhibit 10.42).
- --------------------
* These exhibits were previously filed as part of, and are hereby
incorporated by reference to, the same numbered exhibit (except as
otherwise noted) filed with the Company's Registration Statement on Form
S-1 (Commission No. 333-22985) initially filed on March 7, 1997, as
amended.
Item 9. UNDERTAKINGS
A. The undersigned Registrant hereby undertakes: (1) 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, and (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 clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference into this 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; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold upon the termination of the
offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or controlling persons of
the Registrant pursuant to the indemnity provisions
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<PAGE>
incorporated by reference in Item 6, or otherwise, the Registrant has been
informed 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 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 Securities Act and will be governed by the final
adjudication of such issue.
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<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 Carlsbad, State of California, on this
2nd day of July, 1997.
VISTA MEDICAL TECHNOLOGIES, INC.
By /s/ John R. Lyon
-------------------------------------
JOHN R. LYON
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Vista Medical
Technologies, Inc. a Delaware corporation, do hereby constitute and appoint John
R. Lyon and James C. Blair, and each of them, the lawful attorneys-in-fact and
agents with full power and authority to do any and all acts and things and to
execute any and all instruments which said attorneys and agents, and either one
of them, determine may be necessary or advisable or required to enable said
corporation to comply with the Securities Act, as amended, and any rules or
regulations or requirements of the Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms that all said
attorneys and agents, or either of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
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 R. Lyon Chief Executive Officer
- ------------------------- (Principal Executive Officer) July 2, 1997
John R. Lyon
/s/ Robert J. De Vaere Director of Finance and July 2, 1997
- ------------------------- Administration and Chief
Robert J. De Vaere Financial Officer (Principal
Financial and Accounting Officer)
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<PAGE>
/s/ James C. Blair Chairman of the Board and July 2, 1997
- ------------------------- Director
James C. Blair
/s/ Olav B. Bergheim Director July 2, 1997
- -------------------------
Olav B. Bergheim
/s/ Nicholas B. Binkley Director July 2, 1997
- -------------------------
Nicholas B. Binkley
/s/ Daniel J. Holland Director July 2, 1997
- -------------------------
Daniel J. Holland
/s/ Larry M. Osterink Director July 2, 1997
- -------------------------
Larry M. Osterink
II-6
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
VISTA MEDICAL TECHNOLOGIES, INC.
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<PAGE>
EXHIBIT INDEX
Exhibit
Number Exhibit
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*4.1 Second Restated Certificate of Incorporation of the Company
(Exhibit 3.2).
*4.2 Restated Bylaws of the Company (Exhibit 3.4).
*4.3 Form of Certificate for Common Stock (Exhibit 4.1).
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
*99.1 1997 Stock Option/Stock Issuance Plan, as amended (Exhibit
10.38).
*99.2 1997 Stock Option/Stock Issuance Plan Form of Notice of Grant
(Exhibit 10.39).
*99.3 1997 Stock Option/Stock Issuance Plan Form of Stock Option
Agreement (Exhibit 10.40).
*99.4 1997 Stock Option/Stock Issuance Plan Form of Stock Purchase
Agreement (Exhibit 10.41).
*99.5 1997 Stock Option/Stock Issuance Plan Form of Stock Issuance
Agreement (Exhibit 10.46).
*99.6 Employee Stock Purchase Plan (Exhibit 10.42).
- --------------------
* These exhibits were previously filed as part of, and are hereby
incorporated by reference to, the same numbered exhibit (except as
otherwise noted) filed with the Company's Registration Statement on Form
S-1 (Commission No. 333-22985) initially filed on March 7, 1997, as
amended.
<PAGE>
Exhibit 5.1
Opinion and consent of Brobeck, Phleger & Harrison LLP
<PAGE>
July 2, 1997
Vista Medical Technologies, Inc.
5451 Avenida Encinas, Suite A
Carlsbad, California 92008
Re: VISTA MEDICAL TECHNOLOGIES, INC. REGISTRATION STATEMENT ON FORM
S-8 FOR OFFERING OF 2,820,000 SHARES OF COMMON STOCK
Ladies and Gentlemen:
In connection with the registration of 2,820,000 shares of the Common
Stock of Vista Medical Technologies, Inc. (the "Company") under the Company's
1997 Stock Option/Stock Issuance Plan and Employee Stock Purchase Plan on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended,
we advise you that, in our opinion, if and when such shares have been issued and
sold (and the consideration therefor received) pursuant to the provisions of the
Company's 1997 Stock Option/Stock Issuance Plan or Employee Stock Purchase Plan
and in accordance with the Registration Statement, such shares will be duly-
authorized, validly-issued, fully-paid and non-assessable shares of the
Company's Common Stock.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to all references to us in the
Registration Statement and any further amendments thereto.
Very truly yours,
/s/ BROBECK, PHLEGER & HARRISON LLP
-----------------------------------
BROBECK, PHLEGER & HARRISON LLP
<PAGE>
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Stock Option Plan/Stock Issuance Plan and
the Employee Stock Purchase Plan of Vista Medical Technologies, Inc. of our
report dated January 30, 1997, except for Note 9, as to which the date is
March 3, 1997, with respect to the consolidated financial statements of Vista
Medical Technologies, Inc. for the year ended December 31, 1996 included in
the Registration Statement No. 333-22985 (Form S-1), as amended, filed with
the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
June 30, 1997
