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As filed with the Securities and Exchange Commission on July 22, 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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SOMANETICS CORPORATION
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Exact name of registrant as specified in its charter)
Michigan 38-2394784
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1653 East Maple Road, Troy, Michigan 48083-4208
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(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENTS, DATED APRIL 24, 1997
SOMANETICS CORPORATION 1997 STOCK OPTION PLAN
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(Full title of the plans)
Bruce J. Barrett, President
1653 East Maple Road
Troy, Michigan 48083-4208
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(Name and address of agent for service)
(248) 689-3050
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================================
Proposed
Proposed maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share price registration fee
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<S> <C> <C> <C> <C>
Common Shares (1) 36,150 shares $4.75 (2) $ 171,712.50
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Common Shares 251,200 shares $4.75 (2) $1,193,200.00
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Common Shares 43,800 shares $3.875 (3) $ 169,725.00
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Total 331,150 shares $1,534,637.50 $465.04
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</TABLE>
(1) $0.01 par value per share (the "Common Shares").
(2) Calculated pursuant to Rule 457(h) solely for the purpose of computing
the registration fee and based on the exercise price of the options.
(3) Calculated pursuant to Rule 457(h) solely for the purpose of computing
the registration fee and based on the closing sale price of the Common
Shares, as quoted on The Nasdaq SmallCap Market, on July 15, 1997.
Page -1- of -10- Pages
Exhibit Index is on Page -8-
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. The Annual Report of Somanetics Corporation (the "Registrant")
on Form 10-K for the fiscal year ended November 30, 1996 as filed with
the Securities and Exchange Commission (the "Commission") pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
2. The Quarterly Reports of the Registrant on Form 10-Q for the
fiscal quarters ended February 28, 1997 and May 31, 1997 as filed with
the Commission pursuant to the Exchange Act, and all other reports
filed by the Registrant pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year ended November 30, 1996.
3. The description of the Registrant's Common Shares included in
the Prospectus, dated March 20, 1991 (the "Prospectus"), of the
Registrant, included in its Registration Statement on Form S-1 (file
no. 33-38438) effective March 20, 1991, as filed with the Commission
pursuant to the Securities Act of 1933, as amended (the "Securities
Act"), under the caption "Description of Securities" on pages 41
through 46 of the Prospectus and incorporated by reference into the
Registrant's Registration Statement on Form 8-A effective March 27,
1991 and filed with the Commission pursuant to the Exchange Act,
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 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.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561-571 of the Michigan Business Corporation Act,
directors and officers of a Michigan corporation may be entitled to
indemnification by the corporation against judgments, expenses, fines and
amounts paid by the director or officer in settlement of claims brought against
them by third persons or by or in the right of the corporation if those
directors and officers acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interests of the corporation or its
shareholders.
The Registrant is obligated under its bylaws and under employment
agreements with two of its executive officers to indemnify any present or
former director or executive officer of the Registrant, and may indemnify any
other person, to the fullest extent now or hereafter permitted by law in
connection with any actual or threatened civil, criminal, administrative or
investigative action, suit or proceeding arising out of their past or future
service to the Registrant or a subsidiary, or to another organization at the
request of the Registrant or a subsidiary. In addition, the Articles of
Incorporation of the Company limit certain personal liabilities of directors of
the Company.
The Registrant has obtained Directors' and Officers' liability
insurance. The policy provides for $1,000,000 in coverage including prior acts
dating to the Registrant's inception and liabilities under the Securities Act
of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of Somanetics Corporation,
incorporated by reference to Exhibit 3(i) to the Registrant's
Quarterly Report on Form 10-Q for the quarter ended February
28, 1997.
4.2 Amended and Restated Bylaws of Somanetics Corporation,
incorporated by reference to Exhibit. 4.1 to the Registrant's
Registration Statement on Form S-8 (file no. 33-93538) filed
with the Securities and Exchange Commission on June 16, 1995.
5.1 Opinion of Honigman Miller Schwartz and Cohn.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the
opinion filed as Exhibit 5.1 to this Registration Statement).
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24.1 Powers of Attorney (included after the signature of the
Registrant contained on page -6- of this Registration
Statement).
99.1 Form of Stock Option Agreements, dated April 24, 1997, between
Somanetics Corporation and various employees, incorporated by
reference to Exhibit 10.32 to Amendment No. 1 to the
Registrant's Registration Statement on Form S-1 (file no.
333-25275) effective May 30, 1997.
99.2 Somanetics Corporation 1997 Stock Option Plan, incorporated by
reference to Exhibit 10.9 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended November 30, 1996.
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-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 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 a 20% 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 or Form S-8, 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
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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.
(c) 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 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.
EXPERTS
The financial statements incorporated in this Registration Statement
and in the prospectus related to this Registration Statement by reference from
the Company's Annual Report on Form 10-K for the year ended November 30, 1996
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report (which expresses an unqualified opinion and includes an
explanatory paragraph referring to an uncertainty concerning the Company's
ability to continue as a going concern), which is incorporated in this
Registration Statement and such prospectus by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
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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 Troy, State of Michigan, on July 21, 1997.
SOMANETICS CORPORATION
By: /s/ BRUCE J. BARRETT
----------------------
Bruce J. Barrett,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
officers and directors of SOMANETICS CORPORATION, a Michigan corporation (the
"Company"), hereby constitutes and appoints Bruce J. Barrett and Raymond W.
Gunn, and each of them, the true and lawful attorneys-in-fact and agents of the
undersigned, each with the power of substitution for him in any and all
capacities, with full power and authority in said attorneys-in-fact and agents
and in any one or more of them, to sign, execute and affix his seal thereto and
file the proposed registration statement on Form S-8 to be filed by the Company
under the Securities Act of 1933, as amended, which registration statement
relates to the registration and issuance of the Company's Common Shares, par
value $0.01 a share, pursuant to the Somanetics Corporation Stock Option
Agreements, dated April 24, 1997, and the Somanetics Corporation 1997 Stock
Option Plan, and any of the documents relating to such registration statement;
any and all amendments to such registration statement, including any amendment
thereto changing the amount of securities for which registration is being
sought, and any post-effective amendment, with all exhibits and any and all
documents required to be filed with respect thereto with any regulatory
authority; granting unto said attorneys, and each of them, 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 in order to effectuate the same
as fully to all intents and purposes as he might or could do if personally
present, hereby ratifying and confirming all that said attorneys-in-fact and
agents, and each of them, may lawfully do or cause to be done by virtue hereof.
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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/ BRUCE J. BARRETT President and Chief Executive Officer July 21, 1997
- ---------------------------------- (Principal Executive Officer)
Bruce J. Barrett
/s/ RAYMOND W. GUNN Executive Vice President and July 21, 1997
- ---------------------------------- Chief Financial Officer
Raymond W. Gunn (Principal Financial Officer)
/s/ WILLIAM M. IACONA Corporate Controller July 21, 1997
- ---------------------------------- (Principal Accounting Officer)
William M. Iacona
/s/ H. RAYMOND WALLACE
- ----------------------------------
H. Raymond Wallace Chairman of the Board of Directors July 21, 1997
/s/ DANIEL S. FOLLIS Director July 21, 1997
- ----------------------------------
Daniel S. Follis
/s/ JAMES I. AUSMAN Director July 21, 1997
- ----------------------------------
James I. Ausman, M.D., Ph.D.
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
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<S> <C> <C>
4.1 Restated Articles of Incorporation of Somanetics Corporation, N/A
incorporated by reference to Exhibit 3(i) to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended February 28, 1997.
4.2 Amended and Restated Bylaws of Somanetics Corporation, incorporated by N/A
reference to Exhibit 4.1 to the Registrant's Registration Statement on
Form S-8 filed with the Securities and Exchange Commission on June 16,
1995.
5.1 Opinion of Honigman Miller Schwartz and Cohn. -9-
23.1 Consent of Deloitte & Touche LLP. -10-
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the opinion -9-
filed as Exhibit 5.1 to this Registration Statement).
24.1 Powers of Attorney (included after the signature of the Registrant -6-
contained on page -6- of this Registration Statement).
99.1 Form of Stock Option Agreement, dated April 24, 1997, between N/A
Somanetics Corporation and various employees, incorporated by reference
to Exhibit 10.32 to Amendment No. 1 to the Registrant's Registration
Statement on Form S-1 (file no. 333-25275) effective May 30, 1997.
99.2 Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.9 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended November 30, 1996.
</TABLE>
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EXHIBIT 5.1
WEST PALM BEACH, FLORIDA
TELEPHONE: (313) 256-7800 LANSING, MICHIGAN
WEB SITE: http://law.honigman.com
July 22, 1997
Somanetics Corporation
1653 East Maple Road
Troy, Michigan 48083-4208
Ladies and Gentlemen:
We have represented Somanetics Corporation, a Michigan corporation
(the "Company"), in connection with the preparation and filing with the
Securities and Exchange Commission (the "Commission") of a Registration
Statement on Form S-8 (the "Registration Statement"), for registration under
the Securities Act of 1933, as amended (the "Securities Act"), of a maximum of
331,150 of the Company's Common Shares, par value $.01 per share (the "Common
Shares"), issued or to be issued pursuant to the Somanetics Corporation Stock
Option Agreements, dated April 24, 1997 or pursuant to options granted under
the Somanetics Corporation 1997 Stock Option Plan (collectively, the "Plans").
Based upon our examination of such documents and other matters as we
deem relevant, it is our opinion that (i) the Common Shares to be offered by
the Company under the Plans pursuant to the Registration Statement have been
duly authorized and, (ii) when issued and sold by the Company in accordance
with the Plans and the stock options exercised thereunder, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving such consent, we do not admit hereby that we
come within the category of persons whose consent is required under Section 7
of the Securities Act or the Rules and Regulations of the Commission
thereunder.
Very truly yours,
/s/ HONIGMAN MILLER SCHWARTZ AND COHN
HONIGMAN MILLER SCHWARTZ AND COHN
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Somanetics Corporation on Form S-8 of our report dated January 24,
1997 (which includes an explanatory paragraph referring to an uncertainty
concerning the Company's ability to continue as a going concern), appearing in
the Annual Report on Form 10-K of Somanetics Corporation for the year ended
November 30, 1996, and to the reference to us under the heading "Experts" in
this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Detroit, Michigan
July 22, 1997
