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As filed with the Securities and Exchange Commission on December 14, 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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SONOSITE, INC.
(Exact name of Registrant as specified in its charter)
Washington 91-1405022
(State of incorporation) (I.R.S. Employer Identification No.)
21919 30th Drive S.E.
Bothell, Washington 98021-3904
(Address of principal executive offices)
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Option Notice Agreement, dated July 17, 2000, between the Registrant and
Daniel Walton
Option Notice Agreement, dated July 24, 2000, between the Registrant and
Michael J. Schuh
1998 Nonofficer Employee Stock Option Plan
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Kevin M. Goodwin
President and Chief Executive Officer
SonoSite, Inc.
21919 30th Drive S.E.
Bothell, Washington 98021-3904
(425) 951-1200
(Name, address and telephone number, including area code, of agent for service)
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Copy to:
Stephen M. Graham
John W. Creighton
Orrick, Herrington & Sutcliffe LLP
701 Fifth Avenue, Suite 6500
Seattle, Washington 98104
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(Calculation of Registration Fee on following page)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Amount Maximum Maximum Amount of
to Be Offering Price Aggregate Registration
Title of Securities to Be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01 par value, subject to
outstanding options:
Under individual option letter agreement in
the form of Exhibit 99.1(2).................... 35,000 shares $ 28.594(2) $ 1,000,790 $ 265
Under individual option letter agreement in
the form of Exhibit 99.2(3).................... 60,000 shares $ 28.25(3) $ 1,695,000 $ 448
1998 Nonofficer Employee Stock Option Plan..... 308,250 shares $14.5216(4) $ 4,476,284 $1,182
Common Stock, $0.01 par value, authorized but
unissued under 1998 Nonofficer Employee Stock
Option Plan.................................... 91,750 shares $ 14.625(5) $ 1,341,844 $ 355
TOTAL................................. 495,000 shares $2,250
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</TABLE>
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(1) This Registration Statement shall also cover any additional shares of
common stock that become issuable pursuant to such individual option
letter agreements by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the
receipt of consideration which results in an increase in the number of
the Registrant's outstanding shares of common stock.
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), the computation is based on the exercise price per
share of $28.594 as to outstanding but unexercised options to purchase
an aggregate of 35,000 shares of common stock granted under individual
option notice agreement in the form of Exhibit 99.1.
(3) Pursuant to Rule 457(h) of the Securities Act, the computation is based
on the exercise price per share of $28.25 as to outstanding but
unexercised options to purchase an aggregate of 60,000 shares of common
stock granted under individual option notice agreement in the form of
Exhibit 99.2.
(4) Pursuant to Rule 457(h) of the Securities Act, the computation is based
on the weighted average exercise price per share of $14.5216 as to
outstanding but unexercised options to purchase an aggregate of 308,250
shares of common stock granted under the 1998 Nonofficer Employee Stock
Option Plan.
(5) Estimated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the registration fee. The
computation is based on the average of the high and low sales price of
the common stock as reported on the Nasdaq National Market on December
7, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents filed with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1999 pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), which contains audited
financial statements for the Registrant's latest fiscal year for which such
statements have been filed.
(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.
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 10 and two amendments to such
Form 10, filed on February 13, 1998, March 19, 1998 and March 31, 1998,
respectively, under Section 12(g) of the Exchange Act.
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 filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that 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 such documents.
Item 4. Description of Securities. Not applicable.
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Item 5. Interests of Named Experts and Counsel. None.
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Item 6. Indemnification of Directors and Officers.
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Article VI of the Registrant's Restated Articles of Incorporation
provides that the Registrant may indemnify and hold harmless to the fullest
extent permitted by the Washington Business Corporation Act (the "WBCA") or
other applicable law each person who was or is made a party to or is threatened
to be made a party to or is involved (including, without limitation, as a
witness) in any actual or threatened action, suit or other proceeding, whether
civil, criminal, derivative, administrative or investigative, by reason of the
fact that he or she is or was a director, officer, employee or agent of the
Registrant or, being or having been such a director, officer, employee or agent,
he or she is or was serving at the request of the Registrant as a director,
officer, employee, agent, trustee or in any other capacity of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action or omission in an official capacity or in any
other capacity while serving as a director, officer, employee, agent, trustee or
in any other capacity, against all expense, liability and loss (including,
without limitation, attorneys' fees, judgements, fines, Employee Retirement
Income Security Act of 1974 excise taxes or penalties and amounts to be paid in
settlement) actually or reasonably incurred or suffered by such person in
connection therewith. Such indemnification may continue as to a person who has
ceased to be a director, officer, employee or agent of the Registrant and shall
inure to the benefit of his or her heirs and personal representatives.
The Registrant may pay the expenses of a director, officer, employee or
agent of the Registrant incurred in defending any such proceeding in advance of
the final disposition of any such proceeding; provided, however, that the
payment of such expenses in advance of the final disposition of a proceeding
shall be made to or on behalf of a director, officer, employee or agent only
upon delivery to the Registrant of an undertaking, by or on behalf of such
director, officer, employee or agent, to repay all amounts so advanced if it
shall ultimately be determined that such director, officer, employee or agent is
not entitled to be indemnified under the Registrant's Restated Articles of
Incorporation or otherwise, which undertaking may be unsecured and may be
accepted without reference to financial ability to make repayment.
2
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No indemnification shall be provided under the Registrant's Restated
Articles of Incorporation to any such person if the Registrant is prohibited by
the provisions of the WBCA or other applicable law as then in effect from paying
such indemnification. The WBCA (Sections 23B.08.500 through 23B.08.600 of the
Revised Code of Washington) authorizes a court to award, or a corporation's
board of directors to grant, indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities arising under the Securities Act of 1933, as amended (the
"Securities Act").
The WBCA includes a provision (Section 23B.08.320 of the Revised Code
of Washington) that permits a corporation to limit a director's liability to the
corporation or its shareholders for monetary damages for his or her acts or
omissions as a director, except in certain circumstances involving intentional
misconduct, self-dealing or illegal corporate loans or distributions, or any
transaction from which the director personally benefits. Article V of the
Registrant's Restated Articles of Incorporation contains provisions
implementing, to the fullest extent permitted by Washington law, such
limitations on a director's liability to the Registrant and its shareholders.
In addition, the Registrant maintains an insurance policy insuring its
directors and officers for certain acts or omissions while acting in their
official capacities.
Item 7. Exemption From Registration Claimed. Not applicable.
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Item 8. Exhibits.
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Exhibit
Number Description
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5.1 Opinion of Orrick, Herrington & Sutcliffe LLP regarding
legality of the common stock being registered.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP (included in
Exhibit 5.1).
23.2 Consent of KPMG LLP, Independent Auditors.
24.1 Power of Attorney (see signature page).
99.1 Form of Michael Schuh Option Notice Agreement.
99.2 Form of Daniel Walton Option Notice Agreement.
99.3 1998 Nonofficer Employee Stock Option Plan.
_______________
Item 9. Undertakings.
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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 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 purposes 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 at the
termination of the offering.
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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 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.
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 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 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 Registrant 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.
[Signature Pages Follow]
4
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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 Bothell, State of Washington, on this 13th day of
December, 2000.
SONOSITE, INC.
By: /s/ Kevin M. Goodwin
------------------------------------------
Kevin M. Goodwin
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose individual signature appears below hereby authorizes
Kevin M. Goodwin and Michael J. Schuh or either of them, as attorneys-in-fact
with full power of substitution, to execute in the name and on the behalf of
each person, individually and in each capacity stated below, and to file, any
and all amendments to this registration statement, including any and all
post-effective amendments.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below on the 13th day of December, 2000.
Signature Title
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/s/ Kevin M. Goodwin President, Chief Executive Officer and
--------------------------- Director (Principal Executive Officer)
Kevin M. Goodwin
/s/ Michael J. Schuh Vice President - Finance, Chief Financial
---------------------------- Officer, Secretary and Treasurer (Principal
Michael J. Schuh Financial and Accounting Officer)
/s/ Kirby L. Cramer Chairman of the Board
----------------------------
Kirby L. Cramer
/s/ Edward V. Fritzky Director
-----------------------------
Edward V. Fritzky
/s/ Steven R. Goldstein, M.D. Director
---------------------------------
Steven R. Goldstein, M.D.
5
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/s/ Ernest Mario, Ph.D. Director
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Ernest Mario, Ph.D.
/s/ William G. Parzybok, Jr. Director
--------------------------------
William G. Parzybok, Jr.
/s/ Jeffrey Pfeffer, Ph.D. Director
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Jeffrey Pfeffer, Ph.D.
/s/ Dennis A. Sarti, M.D. Director
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Dennis A. Sarti, M.D.
/s/ Jacques Souquet, Ph.D. Director
-------------------------------
Jacques Souquet, Ph.D.
6
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Orrick, Herrington & Sutcliffe LLP as to the legality
of the common stock being registered.
23.1 Consent of Orrick, Herrington & Sutcliffe LLP
(included in Exhibit 5.1).
23.2 Consent of KPMG LLP, Independent Auditors.
24.1 Power of Attorney (see signature page).
99.1 Form of Michael Schuh Option Notice Agreement.
99.2 Form of Daniel Walton Option Notice Agreement.
99.3 1998 Nonofficer Employee Stock Option Plan.
