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As filed with the Securities and Exchange Commission on August 28, 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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CIRCON CORPORATION
(Exact name of issuer as specified in its charter)
DELAWARE 94-3079004
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6500 HOLLISTER AVENUE
SANTA BARBARA, CALIFORNIA 93117-3019
(805) 685-5100
(Address of principal executive offices)
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1993 STOCK OPTION PLAN
1995 DIRECTORS STOCK OPTION PLAN
(Full title of the plans)
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RICHARD A. AUHLL
PRESIDENT
CIRCON CORPORATION
6500 HOLLISTER AVENUE
SANTA BARBARA, CALIFORNIA 93117-3019
(805) 685-5100
(Name, address and telephone number of agent for service)
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Copy to:
Robert B. Jack, Esq.
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, California 94304
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Aggregate Amount of
Registered Registered Per Share(1) Offering Price(1) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
1993 Stock Option Plan 1,000,000 $ 15.63 $ 15,625,000 $ 4,734.85
1995 Directors Stock Option Plan 200,000 $ 15.63 $ 3,125,000 $ 946.97
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(1) Estimated in accordance with Rule 457(h) solely for the purpose of
computing the amount of the registration fee based on the prices of the
Company's Common Stock as reported on the Nasdaq National Market on
August 26, 1997.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Circon Corporation (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996.
(b) The Company's Quarterly Report on Form 10-Q for the quarters ended
March 31, 1997 and June 30, 1997.
(c) Any description of any securities of the Company which is contained
in any registration statement filed under Section 12 of the Securities
Exchange Act of 1934, as amended, (the "Exchange Act") including any
amendment or report filed for the purpose of updating any such
description.
All documents subsequently filed by the Company 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 securities offered hereby have been sold or which deregisters all
securities 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.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law authorizes a court to award, or a corporation's Board
of Directors to grant indemnity to directors and officers in terms
sufficiently broad to permit such indemnification under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933, as amended (the "Securities Act").
The Bylaws of the Company provide that: (i) the Company is
required to indemnify its officers and directors to the fullest extent
permitted by law, including those circumstances in which indemnification
would otherwise be discretionary; (ii) the Company is required to advance
expenses to its officers and directors as incurred, provided that they
undertake to repay the amount advanced if it is ultimately determined that
they are not entitled to indemnification; (iii) an officer or director may
bring suit against the Company if a claim for indemnification is not timely
paid; (iv) the Company is authorized to enter into indemnification agreements
with its officers, directors and employees; and (v) the Company may not
retroactively amend the Bylaw provision in a way which is adverse to its
officers or directors or former officers or directors.
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The Company has entered into indemnification agreements with each of its
directors and officers that provide the maximum indemnity allowed to
directors and officers under Delaware law and the Bylaws. The
indemnification agreements provide that directors and officers will be
indemnified to the fullest possible extent permitted by law against all
expenses (including attorney's fees) and settlement amounts paid or incurred
by them in an action or proceeding, including any action by or in the right
of the Company, arising out of such persons's services as a director or
officer of the Company, any subsidiary of the Company or any other company or
enterprise to which such person provides services at the request of the
Company. The Company will not be obligated pursuant to the indemnification
agreements to indemnify or advance expenses to an indemnified party with
respect to proceedings or claims initiated by the indemnified party and not
by way of defense, except with respect to proceedings specifically authorized
by the Board of Directors or brought to enforce a right to indemnification
under the indemnification agreements, the Company's Bylaws or any statute or
law. Under the indemnification agreements, the Company is not obligated to
indemnify the indemnified party (i) for any expenses incurred by the
indemnified party with respect to any proceeding instituted by the
indemnified party to enforce or interpret the indemnification agreement, if a
court or competent jurisdiction determines that each of the material
assertions made by the indemnified party in such proceeding was not made in
good faith or was frivolous; (ii) for any amounts paid in settlement of a
proceeding unless the Company consents to such settlement; (iii) on account
of any suit in which judgment is rendered against the indemnified party for
an accounting of profits made from the purchase or sale by the indemnified
party of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934 and related laws; or (iv) if a
final decision by a court having jurisdiction in the matter shall determine
that such indemnifications is not lawful.
The Company carries Directors' and Officers' Liability and Corporate
Reimbursement Insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Independent Auditors
23.2 Consent of Counsel (contained in Exhibit 5.1)
24.1 Power of Attorney
ITEM 9. UNDERTAKINGS
(a) RULE 415 OFFERING 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;
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(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; and
(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 (Section 239.13 of this
chapter) or Form S-8 (Section 239.16(b) of this chapter), 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 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
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) FILING INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
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 (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) REQUEST FOR ACCELERATION OF EFFECTIVE DATE OR FILING OF
REGISTRATION STATEMENT ON FORM S-8
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, 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 Santa Barbara, State of California, on August 19,
1997.
CIRCON CORPORATION
By: /s/
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RICHARD A. AUHLL
President
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EXHIBIT INDEX
Sequentially
Exhibit Numbered
Number Page
5.1 Opinion of counsel as to legality of securities
being registered [ ]
23.1 Consent of Independent Auditors [ ]
23.2 Consent of Counsel (contained in Exhibit 5.1) [ ]
24.1 Power of Attorney [ ]
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EXHIBIT 5.1
August 20, 1997
Circon Corporation
6500 Hollister Avenue
Santa Barbara, CA 93117-3019
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission (the "Registration
Statement") in connection with the registration under the Securities Act of
1933, as amended, (the "Securities Act") of 1,000,000 additional shares of
your Common Stock reserved for issuance under the 1993 Stock Option Plan and
200,000 shares of your Common Stock reserved for issuance under the 1995
Directors Stock Option Plan (collectively the "Plans"). As your legal
counsel, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and
issuance of such Common Stock under the Plans.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the agreements which accompany the Plans, the Common
Stock issued and sold thereby will be legally and validly issued, fully paid and
non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including any Prospectus constituting a part thereof,
and any amendments thereto. This opinion may be incorporated by reference in
any abbreviated registration statement filed pursuant to Item E under the
general instructions to Form S-8 under the Securities Act of 1933 with respect
to the Registration Statement.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
/s/ Wilson Sonsini Goodrich & Rosati
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in the Registration Statement of Circon Corporation on Form S-8
of our reports dated March 24, 1997 appearing in the Annual Report on Form
10-K of Circon Corporation for the year ended 1996, and to all references to
our Firm included in this Registration Statement.
/s/
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ARTHUR ANDERSEN & CO.
Stamford, Connecticut
August 22, 1997
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints RICHARD A. AUHLL and R. BRUCE
THOMPSON, jointly and severally, his attorneys-in-fact, each with the power
of substitution, 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 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 substitute or substitutes, may do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
Signature Title Date
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/s/ Chairman of the Board,
- ---------------------------- President & Chief August 19, 1997
Richard A. Auhll Executive Officer
/s/ Executive Vice President,
- ---------------------------- Chief Financial Officer August 19, 1997
R. Bruce Thompson (Principal Accounting Officer)
/s/
- ---------------------------- Director August 19, 1997
Harold R. Frank
/s/
- ---------------------------- Director August 19, 1997
Rudolf R. Schulte
/s/
- ---------------------------- Director August 19, 1997
John F. Blokker
/s/
- ---------------------------- Director August 19, 1997
Paul W. Hartloff, Jr.
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(Extra signature page)
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Santa Barbara, State of California,
on August 19, 1997.
CIRCON CORPORATION
By: /s/
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RICHARD A. AUHLL
President
