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As Filed With the Securities and Exchange Commission on March 14, 1997
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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MICRO THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0569235
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1062 Calle Negocio #F,
San Clemente, California 92673
(Address of Principal Executive Offices) (Zip Code)
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1993 INCENTIVE STOCK OPTION, NONQUALIFIED STOCK OPTION AND RESTRICTED STOCK
PURCHASE PLAN
1996 STOCK INCENTIVE PLAN
(Full titles of the plans)
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George Wallace, President and Chief Executive Officer
Micro Therapeutics, Inc.
1062 Calle Negocio #F, San Clemente, California 92673
(Name and address of agent for service)
(714) 361-0616
(Telephone number, including area code, of agent for service)
Copy to:
Bruce Feuchter, Esq.
Stradling, Yocca, Carlson & Rauth, a Professional Corporation
660 Newport Center Drive, Suite 1600, Newport Beach, California 92660
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed
Proposed Maximum
Title of Offering Maximum Aggregate Amount of
Securities Amount To Be Offering Price Offering Registration
To Be Registered Registered (1) Per Share Price (2) Fee
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<S> <C> <C> <C> <C>
Common Stock, 1,250,000 (2) $5,595,868 $1,695.72
$.001 par value shares
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</TABLE>
(1) Includes additional shares of Common Stock that may become issuable
pursuant to the anti-dilution adjustment provisions of the Company's 1993
Incentive Stock Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan (the "1993 Plan") and the 1996 Stock Incentive Plan
(the "1996 Plan").
(2) In accordance with Rule 457(h), the aggregate offering price of 704,600
shares of Common Stock registered hereby, which are issuable upon exercise
of options granted under the 1993 Plan and the 1996 Plan, is based upon
the per share exercise price of such outstanding options, the weighted
average of which is approximately $2.33 per share. With respect to the
remaining 545,400 shares of Common Stock registered hereby which are
issuable upon exercise of the remaining options which Registrant is
authorized to issue under its 1993 Plan and the 1996 Plan, the aggregate
offering price is estimated solely for purposes of calculating the
registration fee in accordance with Rule 457(c), using the average of the
high and low price reported by the Nasdaq National Market for the Common
Stock on March 11, 1997, which was $7.25 per share.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant's Prospectus dated February 18, 1997 filed pursuant to
Rule 424(b) of the Securities Act of 1933, as amended (the "Act").
(b) All other reports filed by the Registrant pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the Prospectus referred to in (a)
above.
(c) The description of the Registrant's Common Stock that is contained in
the Registrant's Registration Statement on Form 8-A filed under Section 12 of
the Exchange Act, including any amendment or report filed for the purpose of
updating that 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 have been
sold or which deregisters all of such securities then remaining unsold, shall be
deemed to be incorporated herein by reference and to be a part hereof from the
date of filing of such documents, except as to any portion of any future annual
or quarterly report to stockholders or document that is not deemed filed under
such provisions. For the purposes of this registration statement, any statement
in a document incorporated by reference shall be deemed to be modified or
superseded to the extent that a statement contained in this registration
statement modifies or supersedes a statement in such document. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
(a) As permitted by the Delaware General Corporation Law, the Registrant's
Bylaws provide for indemnification of its directors and officers to the fullest
extent permitted by the Delaware General Corporation Law. In addition, the
Registrant's Certificate of Incorporation eliminates the liability of directors
to the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent otherwise required by the
Delaware General Corporation Law.
(b) The Registrant has entered into indemnification agreements with each
of its directors and executive officers. The indemnification agreements provide
for the indemnification of directors and officers of the Company against any and
all expenses, judgments, fines, penalties and amounts paid in settlement, to the
fullest extent permitted by law. The Registrant also maintains directors and
officers liability insurance, under which directors and officers are insured
against certain expenses in connection with the defense of actions, suits or
proceedings, and certain liabilities which might be imposed as a result of such
actions, suits or proceedings, to which they are parties by reason of being or
having been such directors or officers.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
Number Description
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<S> <C>
4.1 1993 Incentive Stock Option, Nonqualified Stock Option
and Restricted Stock Purchase Plan, incorporated by
reference to Exhibit 10.6 to the Company's Registration
Statement on Form SB-2, No. 333-17345, effective on
February 14, 1997.
4.2 1996 Stock Incentive Plan, incorporated by reference to
Exhibit 10.7 to the Company's Registration Statement on
Form SB-2, No. 333-17345, effective on February 14,
1997.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a
Professional Corporation, Counsel to the Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a
Professional Corporation (included in the Opinion filed
as Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., independent
accountants.
24.1 Power of Attorney (included on signature page to the
Registration Statement at page S-1).
</TABLE>
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;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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;
(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)(1)(i) and (a)(1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by these paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference 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
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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, 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.
(h) 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, 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 San Clemente, State of California, on the 13th day of
March, 1997.
MICRO THERAPEUTICS
By: /s/ George Wallace
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George Wallace
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
We, the undersigned officers and directors of Micro Therapeutics, Inc., do
hereby constitute and appoint George Wallace and Thomas Berryman, or either of
them, as our true and lawful attorneys and agents, to do any and all acts and
things in our name and behalf in our capacities as directors and officers and to
execute any and all instruments for us and in our names in the capacities
indicated below, which said attorneys and agents, or either of them, may deem
necessary or advisable to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in connection with this Registration
Statement, including specifically, but without limitation, power and authority
to sign for us or any of us in our names and in the capacities indicated below,
any and all amendments (including post-effective amendments) hereto or any
related registration statement that is to be effective upon filing pursuant to
Rule 462(b) under the Securities Act of 1933, as amended; and we do hereby
ratify and confirm all that the said attorneys and agents, or either of them,
shall 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 date indicated.
<TABLE>
<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ George Wallace President, Chief Executive March 13, 1997
- --------------------------- Officer and Director
George Wallace
/s/ Thomas Berryman Vice President of Finance March 13, 1997
- --------------------------- and Chief Financial
Thomas Berryman Officer (Principal Financial
and Accounting Officer)
/s/ H. Dubose Montgomery Chairman of the Board and March 13, 1997
- --------------------------- Director
H. Dubose Montgomery
</TABLE>
S-1
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<TABLE>
<S> <C> <C>
/s/ Wende Hutton Director March 13, 1997
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Wende Hutton
/s/ Dick Allen Director March 13, 1997
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Dick Allen
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
4.1 1993 Incentive Stock Option, Nonqualified Stock Option and
Restricted Stock Purchase Plan, incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement on Form
SB-2, No. 333-17345, effective on February 14, 1997.
4.2 1996 Stock Incentive Plan, incorporated by reference to Exhibit
10.7 to the Company's Registration Statement on Form SB-2, No.
333-17345, effective on February 14, 1997.
5.1 Opinion of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation, Counsel to the Registrant.
23.1 Consent of Stradling, Yocca, Carlson & Rauth, a Professional
Corporation (included in the Opinion filed as Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., independent accountants.
24.1 Power of Attorney (included on signature page to the Registration
Statement at page S-1).
</TABLE>
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EXHIBIT 5.1
[LETTERHEAD]
STRADLING, YOCCA, CARLSON & RAUTH
March 13, 1997
Micro Therapeutics, Inc.
1062 Calle Negocio #F
San Clemente, California 92673
RE: Registration Statement on Form S-8 - 1993 Incentive Stock
Option, Nonqualified Stock Option and Restricted Stock
Purchase Plan (the "1993 Plan") and 1996 Stock Incentive
Plan (the "1996 Plan")
Ladies and Gentlemen:
At your request, we have examined the form of Registration Statement on
Form S-8, (the "Registration Statement"), being filed by Micro Therapeutics,
Inc., a Delaware corporation (the "Company"), with the Securities and Exchange
Commission (the "Commission") on March 14, 1997, in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
1,250,000 shares of the Company's Common Stock, $.001 par value per share (the
"Common Stock"), issuable under the Company's 1993 Plan and the Company's 1996
Plan (the "Plans")
We have examined the proceedings heretofore taken and are familiar with
the additional proceedings proposed to be taken by the Company in connection
with the authorization, issuance and sale of the securities referred to above.
Based on the foregoing, it is our opinion that the 1,250,000 shares of
Common Stock to be issued under the Plans and against full payment therefor in
accordance with the respective terms and conditions of the Plans will be legally
and validly issued, fully paid and nonassessable.
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Micro Therapeutics, Inc.
March 13, 1997
Page 2
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
STRADLING, YOCCA, CARLSON & RAUTH
/s/ Stradling, Yocca, Carlson & Rauth
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EXHIBIT 23.2
[LETTERHEAD OF COOPERS & LYBRAND]
CONSENT OF INDEPENDENT ACCOUNTANTS
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We consent to the incorporation by reference in the registration statement on
Form S-8 of Micro Therapeutics, Inc. for the 1996 Stock Incentive Plan and 1993
Stock Option Plan of our report dated December 2, 1996 on our audit of the
financial statements of Micro Therapeutics, Inc. as of December 31, 1995 and
1994 and for the years ended December 31, 1995 and 1994 and for the period from
inception (June 11, 1993) through December 31, 1993, which report is included in
the Prospectus and Form SB-2.
/s/ COOPERS & LYBRAND L.L.P.
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COOPERS & LYBRAND L.L.P.
Newport Beach, California
March 13, 1997
