<PAGE> 1
As filed with the Securities and Exchange Commission on June 4, 1999
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
----------------------
(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)
SOMANETICS CORPORATION 1997 STOCK OPTION PLAN
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(Full title of the plan)
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
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares (1) 199,922 shares $3.56 (2) $711,722.32
- --------------------------------------------------------------------------------------------------------------------
Common Shares 95,078 shares $4.46875 (3) $424,879.81
====================================================================================================================
Total 295,000 shares $1,136,602.13 $315.98
====================================================================================================================
</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 average of the high and low sales
prices of the Common Shares, as quoted on The Nasdaq SmallCap Market,
on June 2, 1999.
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, 1998 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 Report of the Registrant on Form 10-Q for the fiscal
quarter ended February 28, 1999 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, 1998.
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.
Page 2 of 10 Pages
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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, 1998.
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).
24.1 Powers of Attorney (included after the signature of the
Registrant contained on page 6 of this Registration
Statement).
Page 3 of 10 Pages
<PAGE> 4
99.1 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.
99.2 First Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.11 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1997.
99.3 Second Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.12 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1998.
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
Page 4 of 10 Pages
<PAGE> 5
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 and the related financial statement schedule
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, 1998 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.
Page 5 of 10 Pages
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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 June 3, 1999.
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 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.
Page 6 of 10 Pages
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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 June 2, 1999
- ------------------------------------ and a Director (Principal Executive Officer)
Bruce J. Barrett
/s/ RAYMOND W. GUNN Executive Vice President and June 2, 1999
- ------------------------------------ Chief Financial Officer
Raymond W. Gunn (Principal Financial Officer)
/s/ WILLIAM M. IACONA Corporate Controller June 2, 1999
- ------------------------------------ (Principal Accounting Officer)
William M. Iacona
/s/ H. RAYMOND WALLACE Chairman of the Board of Directors June 2, 1999
- ------------------------------------
H. Raymond Wallace
/s/ DANIEL S. FOLLIS Director June 2, 1999
- ------------------------------------
Daniel S. Follis
/s/ JAMES I. AUSMAN Director June 2, 1999
- ------------------------------------
James I. Ausman, M.D., Ph.D.
/s/ ROBERT R. HENRY Director June 2, 1999
- ------------------------------------
Robert R. Henry
</TABLE>
Page 7 of 10 Pages
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description Page
<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, 1998.
4.2 Amended and Restated Bylaws of Somanetics Corporation, N/A
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. 9
23.1 Consent of Deloitte & Touche LLP. 10
23.2 Consent of Honigman Miller Schwartz and Cohn (included in the 9
opinion filed as Exhibit
5.1 to this Registration Statement).
24.1 Powers of Attorney (included after the signature of the 6
Registrant contained on page 6 of this Registration Statement).
99.1 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.
99.2 First Amendment to Somanetics Corporation 1997 Stock Option N/A
Plan, incorporated by N/A reference to Exhibit 10.11 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1997.
99.3 Second Amendment to Somanetics Corporation 1997 Stock Option N/A
Plan, incorporated by N/A reference to Exhibit 10.12 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1998.
</TABLE>
Page 8 of 10 Pages
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EXHIBIT 5.1
[HONIGMAN MILLER SCHWARTZ AND COHN LETTERHEAD]
June 3, 1999
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 295,000 of the
Company's Common Shares, par value $.01 per share (the "Common Shares"), issued
or to be issued pursuant to options granted under the Somanetics Corporation
1997 Stock Option Plan (the "Plan").
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 Plan pursuant to the Registration Statement have been duly
authorized and, (ii) when issued and sold by the Company in accordance with the
Plan and the stock options granted 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 11,
1999 (which report expresses an unqualified opinion and includes an explanatory
paragraph relating 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, 1998, and to the
reference to us under the heading "Experts" in this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Deloitte & Touche LLP
Detroit, Michigan
June 3, 1999
