[Hughes & Luce, L.L.P. Letterhead]
April 8, 1999
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Advanced Neuromodulation Systems, Inc. Registration Statement
on Form S-8 (the "Registration Statement")
Ladies and Gentlemen:
On behalf of Advanced Neuromodulation Systems, Inc., a Texas
corporation (the "Registrant"), we transmit for electronic filing, in accordance
with Regulation S-T and the Securities Act of 1933, as amended, the Registration
Statement on Form S-8 (including exhibits) for 800,000 shares of the
Registrant's Common Stock, $.05 par value, issuable under the Registrant's 1998
Stock Option Plan.
The filing fees associated with the foregoing have been wired to the
designated lockbox at the Mellon Bank in accordance with the EDGAR rules.
Please direct any comments or questions you may have concerning the
foregoing to me at (214) 939-5558.
Respectfully submitted,
/s/ Kenneth G. Hawari
---------------------
Kenneth G. Hawari
cc: The NASDAQ Stock Market, Inc.
F. Robert Merrill III
<PAGE>
As filed with the Securities and Exchange Commission on April 8, 1999.
Registration No. 333-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
ADVANCED NEUROMODULATION SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Texas 75-1646002
------------------------------- -------------------
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization Identification No.)
</TABLE>
One Allentown Parkway
Allen, Texas 75002
(972) 390-9800
(Address, including Zip Code, and Telephone Number, including Area
Code, of Registrant's Principal Executive Offices)
ADVANCED NEUROMODULATION SYSTEMS, INC.
1998 STOCK OPTION PLAN
(Full Title of the Plan)
<TABLE>
<S> <C>
Christopher G. Chavez Copy to:
President and Chief Executive Officer Kenneth G. Hawari
Advanced Neuromodulation Systems, Inc. Hughes & Luce, L.L.P.
One Allentown Parkway 1717 Main Street, Suite 2800
Allen, Texas 75002 Dallas, Texas 75201
(972) 390-9800 (214) 939-5558
(Name, Address, and Telephone Number,
including Area Code, of Agent for Service)
</TABLE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================
<S> <C> <C> <C> <C>
Proposed Proposed
Title of Amount Maximum Maximum Amount of
Securities to to be Offering Price Aggregate Registration
be Registered Registered(1) per Share(2) Offering Price(2) Fee(2)
- -------------- ------------- -------------- ----------------- --------------
Common Stock,
$.05 par value 800,000 $7.00 $5,600,000 $1,556.80
- -------------- ------------- -------------- ----------------- --------------
Common Stock
Rights(3) 800,000 N/A N/A N/A
================================================================================
</TABLE>
(1) Pursuant to Rule 416 under the Securities Act of 1933, as amended, there
are also being registered such additional shares of Common Stock as may
become issuable if certain adjustment provisions or certain antidilution
provisions of the Plan become operative.
(2) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low price paid per share of Common
Stock, as reported on the Nasdaq National Market on April 5, 1999, in
accordance with Rule 457(h) promulgated under the Securities Act of 1933,
as amended.
(3) Issuable pursuant to a Shareholders Rights Plan.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
-----------------
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
------------------------------------------------------------
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents, which have been previously filed with the
Securities and Exchange Commission (the "Commission") by Advanced
Neuromodulation Systems, Inc. (formerly known as Quest Medical, Inc.) (the
"Registrant") are incorporated by reference in this Registration Statement:
(a) Annual Report on Form 10-K for the fiscal year ended December 31,
1998, which contains audited financial statements of the Registrant for the
Registrant's last completed fiscal year for which such statements have been
filed (the "1998 Form 10-K").
(b) All reports filed by the Registrant pursuant to Sections 13(a) or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since December 31, 1998.
(c) The description of the Registrant's Common Stock set forth in the
Registrant's Registration Statement on Form SB-2, dated September 28, 1995
(Commission File Number 33-62991), including any amendment or report 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 to this Registration Statement which indicates that all
of the shares of Common Stock offered have been sold or which deregisters all of
such shares 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 of such documents (such documents, and the documents enumerated above,
being hereinafter referred to as "Incorporated Documents").
-1-
<PAGE>
Any statement contained in an Incorporated Document shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
Incorporated Document modifies or supersedes such statement. 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.
------------------------------------------
Consistent with the Texas Business Corporation Act, the Registrant's
Articles of Incorporation include a provision limiting director liability to the
Company or its shareholders for monetary damages arising from certain acts or
omissions in the director's capacity as a director. The Articles of
Incorporation also provide that to the extent permitted by applicable law, and
by resolution or other proper action of the board of directors of the Company,
the Company may indemnify any director or officer of the Company against
expenses, including attorneys' fees, judgments, fines, and amounts paid in
settlement actually and reasonably incurred in connection with any threatened,
pending, or completed action, suit, or proceeding to which any such person is,
or is threatened to be made, a party and which may arise by reason of the fact
he is or was a person occupying any such office or position. In addition, the
Company maintains insurance on behalf of its directors and executive officers
insuring them against any liability asserted against them in their capacities as
directors or officers or arising out of such status.
Insofar as indemnification by the Company for liabilities arising under
the Securities Act of 1933, as amended (the "Securities Act"), may be permitted
to directors, officers or persons controlling the Company pursuant to the
foregoing provisions, the Company has been informed that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Item 7. Exemption from Registration Claimed.
------------------------------------
Not applicable.
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<PAGE>
Item 8. Exhibits.
---------
The Exhibits to this Registration Statement are listed in the Index to
Exhibits on page 7 of this Registration Statement, which Index is incorporated
herein by reference.
Item 9. Undertakings.
-------------
(a) The 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 the 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. Notwithstanding the
foregoing, any increase or decrease in the volume of securities
offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee"
table in the effective 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) 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 with or furnished to the Commission 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 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-
<PAGE>
(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 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 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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.
(c) Insofar as indemnification by the Registrant for liabilities
arising under the Securities Act may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions described in
Item 6, 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 by the Registrant 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.
-4-
<PAGE>
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 Allen, Texas, on April 8, 1999.
ADVANCED NEUROMODULATION SYSTEMS, INC.
By: /s/ Christopher G. Chavez
-------------------------
Christopher G. Chavez
President, Chief Executive Officer
and Director
(Principal Executive Officer)
-5-
<PAGE>
POWER OF ATTORNEY
We, the undersigned officers and directors of Advanced Neuromodulation
Systems, Inc., hereby severally constitute and appoint Christopher G. Chavez and
F. Robert Merrill III, and each of them singly, our true and lawful attorneys
with full power to them, and each of them singly, to sign for us and in our
names in the capacities indicated below, the Registration Statement on Form S-8
filed herewith and any and all amendments (including post-effective amendments)
to the Registration Statement, and generally to do all things in our name and
behalf in the capacities indicated below to enable Advanced Neuromodulation
Systems, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements to the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our attorneys,
or any of them, to said Registration Statement and any and all amendments
thereto.
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Christopher G. Chavez President, April 8, 1999
- ----------------------------- Chief Executive Officer and Director
Christopher G. Chavez (Principal Executive Director)
/s/ F.Robert Merrill Executive Vice President, Finance April 8, 1999
- ----------------------------- Chief Financial Officer,
F. Robert Merrill Treasurer and Secretary
(Principal Financial
and Accounting Officer)
/s/ Hugh M. Morrison Chairman of the Board and Director April 8, 1999
- -----------------------------
Hugh M. Morrison
/s/ Robert C. Eberhart, Ph.D. Director April 8, 1999
- -----------------------------
Robert C. Eberhart, Ph.D.
/s/ Joseph E. Laptewicz, Jr. Director April 8, 1999
- -----------------------------
Joseph E. Laptewicz, Jr.
/s/ Richard D. Nikolaev Director April 8, 1999
- -----------------------------
Richard D. Nikolaev
/s/ Michael J. Torma, M.D. Director April 8, 1999
- -----------------------------
Michael J. Torma, M.D.
</TABLE>
-6-
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------- -------------------------------------------------------- -------------
<S> <C> <C>
4.1 Advanced Neuromodulation Systems, Inc. 1998 Stock
Option Plan (incorporated by reference from the
Registrant's Definitive Schedule 14A filed with the
Commission on April 27, 1998 - File No. 000-10521). --
4.2 Rights Agreement between Advanced Neuromodulation
Systems, Inc. and KeyCorp Shareholder Services, Inc.,
as Rights Agent dated August 30, 1996 (incorporated by
reference from the Company's Form 8-K filed with the
Commission on September 3, 1996 - File No. 000-10521). --
5.1* Opinion of Hughes & Luce, L.L.P. 8
23.1* Consent of Hughes & Luce, L.L.P.
(Contained in Exhibit 5.1) 8
23.2* Consent of Ernst & Young LLP 9
24.1* Power of Attorney (Contained at page 6) --
</TABLE>
- -----------------
* Filed herewith.
-7-
<PAGE>
EXHIBIT 5.1
[Hughes & Luce, L.L.P. Letterhead]
April 8, 1999
Advanced Neuromodulation Systems, Inc.
One Allentown Parkway
Allen, Texas 75002
Re: Registration Statement on Form S-8 for the Advanced
Neuromodulation Systems, Inc. 1998 Stock Option Plan
("the Plan")
Ladies and Gentlemen:
We have acted as counsel to Advanced Neuromodulation Systems, Inc., a
Texas corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, as amended, of 800,000 shares (and, in addition, an
indeterminate number of additional shares if certain adjustment provisions of
the Plan become operative) (the "Shares") of the Company's common stock, $.05
par value per share, issuable under the Plan. The Shares are being registered
pursuant to a registration statement on Form S-8 to be filed with the Securities
and Exchange Commission on or about April 8, 1999 (the "Registration
Statement").
In connection with this opinion, we have examined such documents and
records of the Company and such statutes, regulations and other instruments and
certificates as we have deemed necessary or advisable for the purposes of this
opinion. We have assumed that all signatures on all documents presented to us
are genuine, that all documents submitted to us as originals are accurate and
complete and that all documents submitted to us as copies are true and correct
copies of the originals thereof. We have also relied upon such certificates of
public officials, corporate agents and officers of the Company and such other
certifications with respect to the accuracy of material factual matters
contained therein which were not independently established.
Based on the foregoing, we are of the opinion that the Shares will be,
if and when issued and paid for pursuant to the Plan, validly issued, fully paid
and nonassessable, assuming the Company maintains an adequate number of
authorized but unissued shares of common stock available for such issuance, and
further assuming that the consideration received by the Company for the Shares
exceeds the par value thereof.
We consent to the use of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ HUGHES & LUCE, L.L.P.
-------------------------
Hughes & Luce, L.L.P.
-8-
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 26, 1999 included in the
Advanced Neuromodulation Systems, Inc. Annual Report on Form 10-K for the year
ended December 31, 1998.
/S/ ERNST & YOUNG LLP
----------------------
ERNST & YOUNG LLP
Dallas, Texas
April 8, 1999
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<PAGE>
