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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 11, 2000
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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INTUITIVE SURGICAL, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 77-0416458
(State of Incorporation) I.R.S. Employer Identification No.)
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1340 W. MIDDLEFIELD ROAD
MOUNTAIN VIEW, CA 94043
(650) 237-7000
(Address of principal executive offices)
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2000 EQUITY INCENTIVE PLAN
2000 NON-EMPLOYEE DIRECTORS' STOCK OPTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Lonnie M. Smith
President and Chief Executive Officer
Intuitive Surgical, Inc.
1340 W. Middlefield Road
Mountain View, CA 94043
(650) 237-7000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copy to:
Laura A. Berezin, Esq.
COOLEY GODWARD LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
(650) 843-5000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (2) PRICE PER SHARE (1) OFFERING PRICE (1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Stock Options and Common
Stock, par value $.001 per 8,435,110 shares $2.273333 - $15.21875 $107,574,758.96 $28,399.74
share
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) and (h)(1) under the Securities
Act of 1933, as amended. The offering price per share and aggregate
offering price for the unissued stock options and Common Stock are based
upon the average of the high and low prices of Registrant's Common Stock on
August 9, 2000 as reported on the Nasdaq National Market. The offering
price per share and aggregate offering price for the outstanding stock
options are based upon the exercise prices of such options. The following
chart illustrates the calculation of the registration fee:
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TITLE OF SHARES NUMBER OF SHARES OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE
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<S> <C> <C> <C>
Shares issuable pursuant to outstanding stock 1,606,520 $ 2.273333 $ 3,652,154.90
options pursuant to the 2000 Equity Incentive Plan
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Shares issuable pursuant to unissued stock 5,528,590 $ 15.21875 $ 84,138,229.06
options pursuant to the 2000 Equity Incentive Plan
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Shares issuable pursuant to unissued stock 300,000 $ 15.21875 $ 4,565,625.00
options pursuant to the 2000 Non-Employee
Directors' Stock Option Plan
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Shares issuable pursuant to the 2000 Employee 1,000,000 $ 15.21875 $ 15,218,750.00
Stock Purchase Plan
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MAXIMUM AGGREGATE OFFERING PRICE 8,435,110 $107,574,758.96
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(2) This Registration Statement shall cover any additional shares of Common
Stock which become issuable under the plans set forth herein by reason of
any stock dividend, stock split, recapitalization or any other similar
transaction without receipt of consideration which results in an increase
in the number of shares of the Registrant's outstanding Common Stock.
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by Intuitive Surgical, Inc. (the "Company")
with the Securities and Exchange Commission are incorporated by reference into
this Registration Statement:
(a) The Company's prospectus filed pursuant to Rule 424(b) under the
Securities Act of 1933, as amended (the "Securities Act"), on June 14, 2000 (No.
333-33016).
(b) The description of the Company's Common Stock which is contained in
the Registration Statement on Form 8-A filed on May 26, 2000, under the
Securities Exchange Act of 1934 (the "Exchange Act"), including any amendment or
report filed for the purpose of updating such description.
(c) All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not Applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock offered hereby will be passed upon for the
Company by Cooley Godward LLP, Palo Alto, California. As of the date of this
Registration Statement, certain partners and associates of Cooley Godward LLP
own an aggregate of 43,153 shares of the Company's Common Stock through an
investment partnership.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Delaware law, the Company's Amended and Restated
Certificate of Incorporation provides that its directors will not be personally
liable to the Company or its stockholders for monetary damages for a breach of
their fiduciary duty as a director, except for liability:
- for any breach of duty of loyalty to the Company or to its stockholders;
- for acts or omissions not in good faith or that involve intentional
misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law; or
- for any transaction from which the director derived an improper personal
benefit.
The Company's Amended and Restated Certificate of Incorporation and By-laws
further provide that it must indemnify its directors and executive officers and
may indemnify its other officers and employees and agents to the fullest extent
permitted by Delaware law. The Company believes that indemnification under its
Amended and Restated Certificate of Incorporation and By-laws covers negligence
and gross negligence on the part of indemnified parties.
The Company has entered into indemnification agreements with each of its
directors and officers. These agreements, among other things, require the
Company to indemnify each director and officer for some expenses including
attorneys' fees, judgments, fines and settlement amounts incurred by any of
these persons in any action or proceeding, including any action by or in the
right of the Company, arising out of person's services as a director or officer,
any subsidiary of the Company or any other company or enterprise to which the
person provides services at the Company's request.
The Company has an insurance policy covering its officers and directors
with respect to certain liabilities, including liabilities arising under the
Securities Act or otherwise.
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EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
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EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
<S> <C>
4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Bylaws of the Company.
4.3* Specimen Stock Certificate.
4.4* Amended and Restated Investor Rights Agreement dated March 31, 1999.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature page.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Non-Employee Directors' Stock Option Plan.
99.3* 2000 Employee Stock Purchase Plan.
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* Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No. 333-33016), originally filed with the SEC on March 22,
2000.
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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 the 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 the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) (ss. 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 the 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 issuer pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by
reference herein.
(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 herein, 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
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 herein,
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
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 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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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 Mountain View, State of California, on August 11,
2000.
INTUITIVE SURGICAL, INC.
By: /s/ LONNIE M. SMITH
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Lonnie M. Smith
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 Lonnie M. Smith and Susan K. Barnes and
each or any one of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully 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 by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ LONNIE M. SMITH President, Chief Executive Officer and August 11, 2000
--------------------------------------- Director (Principal Executive Officer)
Lonnie M. Smith
/s/ SUSAN K. BARNES Vice President, Finance, Chief Financial August 11, 2000
--------------------------------------- Officer and Assistant Secretary (Principal
Susan K. Barnes Financial and Accounting Officer)
/s/ SCOTT S. HALSTED Director August 11, 2000
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Scott S. Halsted
/s/ RUSSELL C. HIRSCH Director August 11, 2000
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Russell C. Hirsch, M.D., PH.D.
/s/ RICHARD J. KRAMER Director August 11, 2000
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Richard J. Kramer
/s/ JAMES A. LAWRENCE Director August 11, 2000
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James A. Lawrence
/s/ ALAN J. LEVY Director August 11, 2000
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Alan J. Levy, Ph.D.
/s/ FREDERIC H. MOLL Director August 11, 2000
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Frederic H. Moll, M.D.
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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4.1* Amended and Restated Certificate of Incorporation of the Company.
4.2* Bylaws of the Company.
4.3* Specimen Stock Certificate.
4.4* Amended and Restated Investor Rights Agreement dated March 31, 1999.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, independent auditors.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement.
24.1 Power of Attorney is contained on the signature page.
99.1* 2000 Equity Incentive Plan.
99.2* 2000 Non-Employee Directors' Stock Option Plan.
99.3* 2000 Employee Stock Purchase Plan.
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* Incorporated by reference to the Company's Registration Statement on Form S-1,
as amended (File No. 333-33016), originally filed with the SEC on March 22,
2000.
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