As filed with the Securities and Exchange Commission on December 31, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
FISCHER IMAGING CORPORATION
(Exact name of registrant as specified in its charter)
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DELAWARE 36-2756787
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
12300 NORTH GRANT STREET
DENVER, COLORADO 80241
(303) 452-6800
(Address of principal executive offices)
EMPLOYEE STOCK PURCHASE PLAN
NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plan)
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WILLIAM C. FEE PAUL HILTON, ESQ.
FISCHER IMAGING CORPORATION DAVIS, GRAHAM & STUBBS LLP
12300 NORTH GRANT STREET 370 17TH STREET, SUITE 4700
DENVER, COLORADO 80241 DENVER, COLORADO 80202
(303) 452-6800 (303) 892-9400
(Name, address and telephone number, (Copies of all correspondence)
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed
Amount maximum Proposed
Title of securities to be offering price aggregate Amount of
to be registered registered per unit(1) offering price(1) registration fee
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<S> <C> <C> <C> <C>
Common Stock, $.01 par value 400,000 shares $2.03125 $812,500 $225.88
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(1) Computed solely for the purpose of determining the amount of the
registration fee in accordance with Rule 457(h), based upon the average of
high and low prices of the Common Stock of the registrant as reported on
the NASDAQ National Market System on December 29, 1998.
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EXPLANATORY NOTE
This Registration Statement covers the registration of (i) 200,000 shares
of Common Stock of Fischer Imaging Corporation (the "Company") issuable pursuant
to the Company's Employee Stock Purchase Plan (the "Purchase Plan") and (ii)
200,000 shares of Common Stock of the Company issuable pursuant to the Company's
Nonemployee Director Stock Option Plan (the "Director Plan"). Pursuant to
amendments to the Purchase Plan approved by the Company's stockholders on
June 12, 1998, a total of 400,000 shares of Common Stock are issuable under the
Purchase Plan. Pursuant to amendments to the Director Plan approved by the
Company's stockholders on June 12, 1998 and amendments to the Plan previously
approved by the Company's stockholders, 300,000 shares of Common Stock are
issuable under the Director Plan.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Fischer Imaging Corporation, a Delaware corporation (the "Company"),
hereby states that the following documents and information hereto filed with the
Securities and Exchange Commission (the "Commission") by the Company pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") are hereby
incorporated by reference in this registration.
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 30, 1998;
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 29, 1998;
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 28, 1998;
5. The description of the Company's Common Stock, par value $.01 per
share, contained in the Company's Registration Statement filed with the
Commission under Section 12 of the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents and reports filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, after the date of this Registration Statement and 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 then remaining unsold, shall be incorporated by
reference in this Registration Statement to be a part hereof from the dates of
filing such documents or reports.
Any statement contained in a document incorporated by reference in this
Registration Statement, or deemed to be incorporated by reference herein, shall
be modified or superseded for purpose of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMES EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws and Certificate of Incorporation provide that the
Company shall, to the full extent permitted by the General Corporation Law of
the State of Delaware, as amended from time to time, indemnify all directors and
officers of the Company. In addition, the Company's Certificate of Incorporation
contains a provision eliminating the personal liability of directors to the
Company or its stockholders for monetary damages arising out of a breach of
fiduciary duty. Under Delaware law, this provision eliminates the liability of a
director for breach of fiduciary duty but does not eliminate the personal
liability of any director based upon breach of the duty of loyalty to the
Company or to its stockholders, acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, any violation of
Section 174 of the General Corporation Law (relating to the declaration of
dividends and the purchase or redemption of shares in violation of the General
Corporation Law), or any transaction from which the director derived an improper
personal benefit.
The Company maintains a directors and officers insurance policy with a
$3,000,000 coverage limit per occurrence and in the aggregate per year, and also
maintains a $2,000,000 excess coverage policy.
The Purchase Plan and the Director Plan each provide that no member of the
Committee administering such plans shall be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan, and
all members of the Committee shall, in addition to their rights as directors, be
fully protected by the Company with respect to any such action, determination or
interpretation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
4.1 Certificate of Incorporation of the Company incorporated by
reference to the Company's Registration Statement on Form S-1,
Registration Number 33-41537, as
filed with the Commission on July 3, 1991.
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4.2 Bylaws of the Company incorporated by reference to the Company's
Registration Statement on Form S-1, Registration Number 33-41537, as
filed with the Commission on July 3, 1991.
4.3 Form of Common Stock Certificate incorporated by reference to
Amendment No. 1 to the Company's Registration Statement on Form S-1,
Registration Number 33-41537, as filed with the Commission on July
18, 1991.
5.1 Opinion of Davis, Graham & Stubbs LLP.
23.1 Consent of Davis, Graham & Stubbs LLP. See Exhibit 5.1.
23.2 Consent of Arthur Andersen LLP.
ITEM 9. UNDERTAKINGS
1. 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 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; (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; and (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.
2. The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Company'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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of its counsel the matter
has been settled by controlling
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precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the 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 Denver, State of Colorado, on the 31st day of
December, 1998.
FISCHER IMAGING CORPORATION
By: /S/ MORGAN W. NIELDS
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Morgan W. Nields
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Morgan W. Nields and William C. Fee, and
each or any of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, 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 connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully 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 by the following persons in the
capacities and on the date indicated.
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Signature Title Date
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/S/ MORGAN W. NIELDS Chairman of the Board and December 31, 1998
- ------------------------ Chief Executive Officer
Morgan W. Nields
/S/ WILLIAM C. FEE Vice President, December 31, 1998
- ------------------------ Chief Accounting Officer,
William C. Fee (Principal Financial and
Accounting Officer)
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Signature Title Date
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/S/ DAVID G. BRAGG Director December 31, 1998
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David G. Bragg, M.D.
/S/ THOMAS J. CABLE Director December 31, 1998
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Thomas J. Cable
Director December 31, 1998
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Kinney L. Johnson
Director December 31, 1998
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R. John Fletcher
/S/ KATHRYN A. PAUL Director December 31, 1998
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Kathryn A. Paul
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EXHIBIT INDEX
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Exhibit No. Description Page
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4.1 Certificate of Incorporation of the Company incorporated by
reference to the Company's Registration Statement on Form S-1,
Registration Number 33-41537, as filed with the Commission on
July 3, 1991.
4.2 Bylaws of the Company incorporated by reference to the
Company's Registration Statement on Form S-1, Registration
Number 33-41537, as filed with the Commission on July 3,
1991.
4.3 Form of Common Stock Certificate incorporated by reference to
Amendment No. 1 to the Company's Registration Statement on
Form S-1, Registration Number 33-41537, as filed with the
Commission on July 18, 1991.
5.1 Opinion of Davis, Graham & Stubbs LLP.
23.1 Consent of Davis, Graham & Stubbs LLP. See Exhibit 5.1.
23.2 Consent of Arthur Andersen LLP.
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[LETTERHEAD OF DAVIS, GRAHAM & STUBBS LLP]
December 31, 1998
Fischer Imaging Corporation
12300 North Grant Street
Denver, Colorado 80241
RE: REGISTRATION ON FORM S-8 OF 200,000 SHARES OF COMMON STOCK TO BE
ISSUED PURSUANT TO THE FISCHER IMAGING CORPORATION NONEMPLOYEE
DIRECTOR STOCK OPTION PLAN AND 200,000 SHARES OF COMMON STOCK TO
BE ISSUED PURSUANT TO THE FISCHER IMAGING CORPORATION EMPLOYEE
STOCK PURCHASE PLAN.
Ladies and Gentlemen:
We have acted as counsel to Fischer Imaging Corporation, a Delaware
corporation (the "Company"), in connection with the registration by the Company
of 400,000 shares of Common Stock, $.01 par value (the "Shares"), described in
the Registration Statement on Form S-8 of the Company being filed with the
Securities and Exchange Commission concurrently herewith. Of the 400,000 Shares
to be registered, 200,000 of the Shares will be issued pursuant to the Company's
Nonemployee Director Stock Option Plan (the "Director Plan") and 200,000 of the
Shares will be issued pursuant to the Company's Employee Stock Purchase Plan
(the "Purchase Plan"). In such connection, we have examined certain corporate
records and proceedings of the Company, including actions taken by the board of
directors of the Company in respect of the authorization and issuance of the
Shares, and such other matters as we deemed appropriate.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, when sold as contemplated by the Director Plan and the
Purchase Plan, as applicable, and the Registration Statement, will be validly
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to the
above-mentioned Registration Statement.
Sincerely,
/s/ Davis, Graham & Stubbs LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated January
23, 1998 included in the company's Form 10-K for the year ended December 31,
1997 and to all references to our Firm included in this registration statement
on Form S-8.
/s/ Arthur Andersen LLP
Denver, Colorado
December 31, 1998
