<PAGE>
As filed with the Securities and Exchange Commission on September 29, 2000
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
CURON MEDICAL, INC.
(Exact name of Registrant as specified in its charter)
------------------------------------
Delaware 77-0470324
-------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
735 Palomar Ave.
Sunnyvale, CA 94085
(Address of principal executive offices)
1997 STOCK OPTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
2000 STOCK PLAN
(Full title of the plans)
-----------------------------------------
John W. Morgan
President and Chief Executive Officer
Curon Medical, Inc.
735 Palomar Ave.
Sunnyvale, CA 94085
(408) 733-9910
(Name, address, and telephone number, including area code, of agent for service)
-----------------------------------------
Copy to:
David J. Saul, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(415) 493-9300
-----------------------------------------
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Maximum Proposed Proposed Amount of
Securities Amount Maximum Maximum Registration
to be to be Offering Aggregate Fee
Registered Registered Price Per Offering
Share Price
----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,251,820 shares(1) $ 2.30 (2) $ 2,879,186 (3) $ 760.11
$0.001 par value............... ------- --------- ---------
Common Stock 2,264,408 shares(4) 10.75 (5) $24,342,386 $6,426.39
$0.001 par value............... -------- ---------- --------
Common Stock 400,000 shares(6) 9.1375 (7) $ 3,655,000 $ 964.92
$0.001 par value............... -------- ---------- ---------
TOTAL...................... 3,916,228 shares -- $30,876,572 $8,151.42
----------- ---------
==============================================================================================================================
</TABLE>
(1) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken
down into three subtotals. This subtotal represents the sum of shares
issuable upon exercise of presently outstanding options (options that have
been granted as of the date of this Registration Statement) issued under
the 1997 Stock Option Plan.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, solely for the purpose of calculating the total registration
fee. Computation based on the weighted average exercise price (rounded to
nearest cent) at which the options outstanding whose exercise will result
in the issuance of the shares being registered may be exercised.
(3) Calculated in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note 1 above.
(4) This subtotal represents the sum of shares issuable upon exercise of
options that have not yet been granted under the 1997 Stock Option Plan as
of the date of this Registration Statement and shares to be granted under
the 2000 Stock Plan.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon the average
of the high and low prices of the Common Stock as reported in The Nasdaq
Stock Market on September 28, 2000.
(6) This subtotal represents the number of shares authorized to be issued under
the 2000 Employee Stock Purchase Plan.
(7) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon 85% (see
explanation in following sentence) of the average of the high and low
prices of the Common Stock as reported in The Nasdaq Stock Market on
September 28, 2000. Pursuant to the 2000 Employee Stock Purchase Plan,
which plan is incorporated by reference herein, the purchase price of a
share of Common Stock shall be an amount equal to 85% of the fair market
value of a share of Common Stock on the Enrollment Date or the Exercise
Date (as defined in such plan), whichever is lower.
<PAGE>
CURON MEDICAL, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by Curon Medical, Inc.
(the "Company") with the Securities and Exchange Commission:
(1) The Company's Registration Statement on Form S-1 (file no. 333-37866)
under the Securities Act of 1933, as amended (the "Securities Act"), and as
declared effective on September 21, 2000.
(2) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and as declared effective on September 21, 2000.
(3) All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and 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 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.
--------------------------------------
Certain member of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, and investment partnerships of which such persons are partners
beneficially own 91,200 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and in
a manner he 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 his conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a
II-1
<PAGE>
a judgment in its favor . . . [by reason of his service in one of the capacities
specified in the preceding sentence] against expenses (including attorneys'
fees) actually and reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper."
The Company's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Company shall be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated Certificate of
Incorporation also provides that no amendment or repeal of such provision shall
apply to or have any effect on the right to indemnification permitted thereunder
with respect to claims arising from acts or omissions occurring in whole or in
part before the effective date of such amendment or repeal whether asserted
before or after such amendment or repeal.
The Company's Bylaws provide that the Company shall indemnify to the full
extent authorized by law each of its directors, officers, employees and other
agents against expenses actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that such person is or was an agent of
the corporation.
The Company has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in the
Company's Bylaws, and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable
Item 8. Exhibits.
--------
<TABLE>
<CAPTION>
<S> <C>
Exhibit Number Description
------------- -------------------------------------------------------------------
10.2* 1997 Stock Plan.
10.3* 2000 Employee Stock Purchase Plan.
10.8* 2000 Stock Option Plan.
5.1 Opinion of counsel as to the legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Auditors
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
---------------------
* Incorporated by reference to exhibits filed with the Company's
Registration Statement on Form S-1 (file no. 333-37866), and as
declared effective on September 21, 2000.
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<PAGE>
Item 9. Undertakings.
------------
A. The Company 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 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.
(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. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the Corporation Law, the Company's Restated
Certificate of Incorporation, the Company's Bylaws or the Company's
indemnification agreements, the Company has been informed 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 Company of expenses incurred or paid by a director, officer or
controlling person of the Company 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 Company 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Curon Medical, 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 Sunnyvale, State of California, on this 29th day
of September 2000.
CURON MEDICAL, INC.
By: /s/ John W. Morgan
------------------
John W. Morgan
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 John W. Morgan and Alistair F. McLaren,
jointly and severally, as his attorneys-in-fact, with full power of substitution
in each, for him in any and all capacities to sign any amendments to this
Registration Statement on Form S-8, and to file the same, with all exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that each of said
attorneys-in-fact, or his 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 below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
-------------------------------------- -------------------------------------------------- ----------------
<S> <C> <C>
/s/ John W. Morgan President and Chief Executive Officer and Director September 29,2000
--------------------------------------- (Principal Executive Officer)
(John W. Morgan)
/s/ Alistair F. McLaren Chief Financial Officer and Vice President of
--------------------------------------- Finance and Administration September 29,2000
(Alistair F. McLaren) (Principal Financial Officer)
/s/ Michael Berman
--------------------------------------- Director September 29,2000
(Michael Berman)
/s/ Fred L. Brown
--------------------------------------- Director September 29,2000
(Fred L. Brown)
/s/ David I. Fann
--------------------------------------- Director September 29,2000
(David I. Fann)
/s/ Alan L. Kaganov
--------------------------------------- Director September 29,2000
(Alan L. Kaganov)
/s/ Robert F. Kuhling, Jr.
--------------------------------------- Director September 29,2000
(Robert F. Kuhling, Jr.)
</TABLE>
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<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
--------------------- -------------------------------------------------------------------
<C> <S>
10.2* 1997 Stock Plan.
10.3* 2000 Employee Stock Purchase Plan.
10.8* 2000 Stock Option Plan.
5.1 Opinion of counsel as to the legality of securities being registered.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page II-4).
</TABLE>
*Incorporated by reference to exhibits filed with the Company's
Registration Statement on Form S-1 (file no. 333-37866), and as declared
effective on September 21, 2000.
