As filed with the Securities and Exchange
Commission on August 14, 2000.
Registration No. 333-_______
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------------
CARDIA, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1923885
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
13770 FRONTIER COURT
BURNSVILLE, MINNESOTA 5533-4720
(Address of Principal Executive Offices and Zip Code)
----------------------------
CARDIA, INC.
1999 OMNIBUS STOCK INCENTIVE PLAN
(Full title of the Plan)
----------------------------
JOSEPH A. MARINO
CHIEF EXECUTIVE OFFICER
CARDIA, INC.
13770 FRONTIER COURT
BURNSVILLE, MINNESOTA 55337-4720
TELEPHONE: (612) 997-2100
(Name, address and telephone number, including area code, of agent for service)
COPY TO:
Patrick Delaney, Esq.
Lindquist & Vennum P.L.L.P.
4200 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 371-3211
----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================================================
TITLE OF Amount Proposed Maximum Proposed Maximum Amount
EACH CLASS OF to be Offering Price Aggregate Offering of Registration
SECURITIES TO BE REGISTERED Registered Per Share(1) Price(1) Fee(1)
---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Common Stock, Par Value $0.01 per share 200,000 $1.10 $220,000 $58.08
=================================================================================================================================
</TABLE>
(1) Estimated for purposes of determining the registration fee pursuant to
Rule 457(h). Pursuant to Rule 457(h)(1) under the Securities Act of
1933, as amended, the registration fee has been calculated based upon
the highest price at which outstanding options granted under the
Cardia, Inc. 1999 Omnibus Stock Incentive Plan may be exercised, which
exceeds the book value of the Company's Common Stock on June 30, 2000.
<PAGE>
PART I
Pursuant to Part I of Form S-8, the information required by Items 1
and 2 of Form S-8 is not filed as a part of this Registration Statement.
PART II
Item 3. Incorporation of Documents by Reference.
-------------------------------------------------
The following documents filed with the Securities and Exchange
Commission are hereby incorporated by reference:
(a) The Annual Report of the Company on Form 10-KSB for the fiscal
year ended December 31, 1999, as amended by Form 10-KSB/A.
(b) The Quarterly Report of the Company on Form 10-QSB for the
quarters ended March 31, 2000 and June 30, 2000.
(c) The description of the Company's Common Stock a set forth in the
Company's Form SB-2/A Registration Statement (Registration No.
333-68167), filed with the Commission on February 10, 1999 and as
set forth in the Company's Form S-4 Registration Statement
(Registration No. 333-84875), filed with the Commission on August
10, 1999, including any amendments or reports filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 in this
Registration Statement and to be a part hereof from the date of filing such
documents.
Item 4. Description of Securities.
---------------------------------
Not applicable.
Item 5. Interests of Named Experts and Counsel.
----------------------------------------------
Lindquist & Vennum P.L.L.P. is rendering its opinion as to the
validity of shares being registered hereby. Patrick Delaney, a partner at
Lindquist & Vennum, P.L.L.P., is the Secretary and a holder of Common Stock
and options to acquire Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
-------------------------------------------------
Section 302A.521 of the Minnesota Business Corporation Act provides
that a corporation shall indemnify any person made or threatened to be made
a party to a proceeding by reason of acts or omissions performed in their
official capacity as an officer, director, employee or agent of the
corporation against judgments, penalties, fines, including without
limitation, excise taxes assessed against such person with respect to an
employee benefit plan, settlements, and reasonable expenses, including
attorneys' fees and disbursements, incurred by such person in connection
with the proceeding if, with respect to the acts or omissions of such
person complained of in the proceeding, such person (i) has not been
indemnified by another organization or employee benefit plan for the same
expenses
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<PAGE>
with respect to the same acts or omissions; (ii) acted in good faith; (iii)
received no improper personal benefit and Minnesota Statutes, Section
302A.255 (regarding conflicts of interest), if applicable, has been
satisfied; (iv) in the case of a criminal proceeding, has no reasonable
cause to believe the conduct was unlawful; and (v) in the case of acts or
omissions by persons in their official capacity for the corporation,
reasonably believed that the conduct was in the best interests of the
corporation, or in the case of acts or omissions by persons in their
capacity for other organizations, reasonably believed that the conduct was
not opposed to the best interests of the corporation. In addition, Section
302A.521, subd. 3, of the Minnesota Statutes requires payment or
reimbursement by the corporation, upon written request, of reasonable
expenses (including attorneys' fees) incurred by a person in advance of the
final disposition of a proceeding in certain instances if a decision as to
required indemnification is made by a disinterested majority of the Board
of Directors present at a meeting at which a disinterested quorum is
present, or by a designated committee of the Board, by special legal
counsel, by the shareholders or by a court. The Registrant's Bylaws provide
for indemnification of officers, directors and employees to the fullest
extent provided by the Minnesota Business Corporation Act, as it may be
amended from time to time.
As permitted by Section 302A.251 of the Minnesota Business Corporation
Act, the Articles of Incorporation of the Registrant eliminate the
liability of the directors of the Registrant for monetary damages arising
from any breach of fiduciary duties as a member of the Registrant's Board
of Directors, except for liability (i) for any breach of the director's
duty of loyalty to the Registrant or its shareholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law; (iii) under Sections 302A.559 or 80A.23 of the
Minnesota Statutes; (iv) for any transaction from which a director derived
an improper personal benefit; or (v) for any act or omission that occurred
prior to the adoption of these provisions in the Registrant's Articles of
Incorporation.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers and controlling
persons pursuant to the foregoing provisions, or otherwise, we have been
advised that, in the opinion of the SEC, such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable.
Item 7. Exemption from Registration Claimed.
-------------------------------------------
Not applicable.
Item 8. Exhibits.
----------------
Exhibit
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4.1 Cardia, Inc. 1999 Omnibus Stock Incentive Plan
5.1 Opinion of Lindquist & Vennum P.L.L.P.
23.1 Consent of Lindquist & Vennum P.L.L.P. (include in Exhibit 5.1)
23.2 Consent of Grant Thornton LLP
23.3 Consent of PricewaterhouseCoopers LLP
24.1 Power of Attorney (included on signature page)
3
<PAGE>
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 of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effectiv amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set
forth in the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or an material change to such information in the
registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the registration statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d)
of the Securities Exchange Act of 1934 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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 connected 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 Act and will be governed by the final
adjudication of such issue.
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<PAGE>
SIGNATURES
The Registrant. 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 Burnsville, State of Minnesota, on August 11,
2000.
CARDIA, INC.
By: /s/ Joseph A. Marino
-----------------------------------------------------------
Joseph A. Marino, Chief Executive Officer,
President, Treasurer and Chairman of the Board of Directors
POWER OF ATTORNEY
The undersigned officers and directors of Cardia, Inc. hereby
constitute and appoint Joseph A. Marino with power to act, our true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for us and in our stead, in any and all capacities to sign any and all
amendments (including post-effective amendments) to this Registration Statement
and all documents relating thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing necessary or
advisable to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his substitutes, may lawfully 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 on
August 11, 2000 in the capacities indicated.
Signature Title
--------- -----
/s/ Joseph A. Marino Chief Executive Officer, President, Treasurer and
-------------------- Chairman of the Board of Directors and Director
Joseph A. Marino (principal executive and principal financial
and accounting officer)
/s/ Thomas E. Brust Director
-------------------
Thomas E. Brust
/s/ Christopher J. Turnbull Director
---------------------------
Christopher J. Turnbull
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