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As filed with the Securities and Exchange Commission on December 30, 1998
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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COHESION TECHNOLOGIES, INC.
(Exact Name of Registrant as Specified in Its Charter)
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<S> <C>
DELAWARE 94-3274368
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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2500 FABER PLACE
PALO ALTO, CALIFORNIA 94303
(Address of Principal Executive Offices)
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1998 EMPLOYEE STOCK PURCHASE PLAN
1998 STOCK OPTION PLAN
1998 DIRECTORS' STOCK OPTION PLAN
(Full Title of the Plans)
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DAVID J. FOSTER
CHIEF EXECUTIVE OFFICER
COHESION TECHNOLOGIES, INC.
2500 FABER PLACE
PALO ALTO, CALIFORNIA 94303
(650) 354-4300
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
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Copy to:
Michael W. Hall
Venture Law Group
A Professional Corporation
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
Page 1 of 9 Pages
Exhibit Index on Page 7
(Calculation of Registration Fee on following page)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Maximum
Maximum Amount Maximum Aggregate Amount of
to be Offering Price Offering Price Registration
Title of Securities to be Registered Registered(1) Per Share Fee
- ---------------------------------------------- ------------------ ---------------- ------------------ --------------
<S> <C> <C> <C> <C>
1998 EMPLOYEE STOCK PURCHASE PLAN
Common Stock,
$0.001 par value............................ 250,000 Shares $2.6297(2) $657,425 $183
1998 STOCK OPTION PLAN
Common Stock Issuable upon Exercise of
Outstanding Options, $0.001 par value....... 2,045,660 Shares $4.8267(3) $9,873,787 $2,745
Common Stock Reserved for Grant of
Additional Options, $0.001 par value........ 561,340 Shares $3.09375(4) $1,736,646 $483
1998 DIRECTORS' STOCK OPTION PLAN
Common Stock Issuable upon Exercise of
Outstanding Options, $0.001 par value....... 173,000 Shares $5.7632(3) $997,034 $277
Common Stock Reserved for Grant of
Additional Options, $0.001 par value........ 95,000 Shares $3.09375(4) $293,906 $82
TOTAL 3,125,000 Shares $13,558,798 $3,770
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement 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) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
of 1933, as amended (the "Securities Act"), solely for the purpose of
calculating the registration fee. The computation is based upon the average
of the high and low sale prices of the Common Stock as reported on the
NASDAQ National Market on December 23, 1998, multiplied by 85%, which is
the percentage of the trading purchase price applicable to purchases under
the 1998 Employee Stock Purchase Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price of outstanding options under the
referenced Plan as of December 23, 1998, the shares issuable under which
are registered hereby.
(4) Estimated in accordance with Rule 457(c) and (h) under the Securities Act
solely for the purpose of calculating the registration fee. The computation
with respect to unissued options is based upon the average of the high and
low sale prices of the Common Stock as reported on the NASDAQ National
Market on December 23, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
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 filed with the Commission
under Section 13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on September 28, 1998, including all amendments thereto that
have been or may be filed for the purpose of updating such report.
(b) The Registrant's quarterly report on Form 10-Q filed with the
Commission under Section 13(a) of the Exchange Act on November 16, 1998,
including all amendments thereto that have been or may be filed for the purpose
of updating such report.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 10 filed with the Commission under
Section 12 of the Exchange Act on April 27, 1998, including all amendments
thereto that have been or may be filed for the purpose of updating such
description.
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 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 in this Registration Statement and to be
part hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Craig W. Johnson has been a director of Cohesion Technologies, Inc. (the
"Company") since January 1998. Mr. Johnson has also been the Chairman and a
director of Venture Law Group, A Professional Corporation, principal outside
counsel to the Company, and a partner of its predecessor partnership, since
February 1993. As of the date of this filing, Mr. Johnson beneficially owned
86,000 shares of the Company's Common Stock (including options to purchase
36,000 shares of Common Stock which are currently exercisable), which number
represents less than one percent of the outstanding shares of the Company's
Common Stock. In addition, Mr. Johnson was a director of Collagen Corporation,
the Company's predecessor corporation, from 1991 to August 12, 1998.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers, as well as other
employees and individuals, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation--a
"derivative action"), if they acted in good faith and in a manner they
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 their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such actions, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, bylaws, disinterested director vote, stockholder vote, agreement or
otherwise.
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The Company's Amended and Restated Certificate of Incorporation limits the
liability of directors to the full extent permitted by Delaware law. Delaware
law provides that a corporation's certificate of incorporation may contain a
provision eliminating or limiting the personal liability of directors for
monetary damages for breach of their fiduciary duties as directors, except for
liability (i) for any breach of their duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases or redemptions as provided
in Section 174 of the DGCL, or (iv) for any transaction from which the director
derived an improper personal benefit. The Company's Bylaws provide that the
Company shall indemnify its directors and officers and may indemnify its
employees and agents to the fullest extent permitted by law. The Company
believes that indemnification under its Bylaws covers at least negligence and
gross negligence on the part of indemnified parties.
The Company intends to enter into agreements which indemnify its directors
and executive officers. These agreements indemnify, among other things, the
Company's directors and officers for certain expenses (including attorneys'
fees), judgments, fines and settlement amounts incurred by such persons in any
action or proceeding, including any action by or in the right of the Company,
arising out of such person's services as a director or officer of the Company,
any subsidiary of the Company or any other company or enterprise to which the
person provides services at the request of the Company. The Company believes
that these provisions and agreements are necessary to attract and retain
qualified directors and officers.
At present, there is no pending litigation or proceeding involving any
director, officer, employee or agent of the Company where indemnification will
be required or permitted. The Company is not aware of any threatened litigation
or proceeding that might result in a claim for such indemnification.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
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Exhibit
Number
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5.1 Opinion of Venture Law Group, A Professional Corporation.
23.1 Consent of Venture Law Group, A Professional Corporation (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney (see p. 6).
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Item 9. UNDERTAKINGS.
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.
(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 the 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]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Cohesion Technologies, Inc., a corporation organized and existing under the laws
of the State of Delaware, 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 Palo Alto, State of California, on
December 30, 1998.
Cohesion Technologies, Inc.
By: /s/ David J. Foster
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David J. Foster
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David J. Foster and Frank A. DeLustro,
Ph.D., jointly and severally, his or her attorneys-in-fact and agents, each with
the power of substitution and resubstitution, for him or her and in his or her
name, place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully as he or she might or could do in
person, and ratifying and confirming all that the attorneys-in-fact and agents,
or his or her substitute or 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 by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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/s/ David J. Foster Chief Executive Officer and Director December 30, 1998
- ------------------------------------ (Principal Executive Officer)
David J. Foster
/s/ Frank A. DeLustro President, Chief Operating Officer and December 30, 1998
- ------------------------------------ Director
Frank A. DeLustro, Ph.D.
/s/ Sharon S. Kokubun Vice President, Financial Operations December 30, 1998
- ------------------------------------ (Principal Accounting Officer)
Sharon S. Kokubun
/s/ John R. Daniels Director December 30, 1998
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John R. Daniels, M.D.
/s/ Reid W. Dennis Director December 30, 1998
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Reid W. Dennis
/s/ Craig W. Johnson Secretary and Director December 30, 1998
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Craig W. Johnson
/s/ Craig T. Davenport Director December 30, 1998
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Craig T. Davenport
/s/ Mark A. Philip Director December 30, 1998
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Mark A. Philip, Ph.D.
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INDEX TO EXHIBITS
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Exhibit Page
Number No.
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5.1 Opinion of Venture Law Group, A Professional Corporation
23.1 Consent of Venture Law Group, A Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP, Independent Auditors
24.1 Powers of Attorney (see p. 6)
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EXHIBIT 5.1
December 30, 1998
Cohesion Technologies, Inc.
2500 Faber Place
Palo Alto, California 94303
REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") filed by you with the Securities and Exchange Commission (the
"Commission") on December 30, 1998 in connection with the registration under the
Securities Act of 1933, as amended, of a total of 3,125,000 shares of your
Common Stock (the "Shares") reserved for issuance under the 1998 Employee Stock
Purchase Plan, the 1998 Stock Option Plan and the 1998 Directors' Stock Option
Plan. 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 sale and issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement 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, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
[On Accountant Firm's Letterhead]
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1998 Employee Stock Purchase Plan, 1998 Directors'
Stock Option Plan and 1998 Stock Option Plan of Cohesion Technologies, Inc. of
our report dated July 31, 1998, with respect to the consolidated financial
statements of Cohesion Technologies, Inc. included in its Annual Report (Form
10-K) for the year ended June 30, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Palo Alto, California
December 23, 1998
