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As filed with the Securities and Exchange Commission on August 10, 2000
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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INSITE VISION INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 94-3015807
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
965 ATLANTIC AVENUE
ALAMEDA, CALIFORNIA 94501
(Address of principal executive offices) (Zip Code)
INSITE VISION INCORPORATED
1994 STOCK OPTION PLAN
INSITE VISION INCORPORATED
1994 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the Plan(s))
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S. KUMAR CHANDRASEKARAN, PH.D.
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
INSITE VISION INCORPORATED
965 ATLANTIC AVENUE
ALAMEDA, CALIFORNIA 94501
(Name and address of agent for service)
(510) 865-8800
(Telephone Number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Registered(1) Offering Price per Share(2) Aggregate Offering Price(2) Registration Fee
------------------------------------ ------------- --------------------------- --------------------------------------------
<S> <C> <C> <C> <C>
InSite Vision Incorporated 405,916 shares $3.85 $1,562,776.60 $412.58
1994 Stock Option Plan -------------- ------- ------------- -------
Common Stock, $0.01 par value
InSite Vision Incorporated 85,000 shares $3.85 $327,250.00 $86.40
1994 Employee Stock Purchase Plan -------------- ------- ------------- -------
Common Stock, $0.01 par value
490,916 shares $498.98
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1994 Stock Option Plan and the
1994 Employee Stock Purchase Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of Registrant's Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) of the
Securities Act of 1933, as amended, on the basis of the average of the high
and low selling price per share of the Registrant's Common Stock on
August 4, 2000, as reported by the American Stock Exchange (AMEX).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
InSite Vision Incorporated (the "Registrant") hereby incorporates
by reference into this Registration Statement the following documents previously
filed with the Securities and Exchange Commission (the "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999 filed with the Commission on March 30,
2000;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2000, filed with the Commission on May
15, 2000; and
(c) The Registrant's Registration Statement Nos. 000-22332 and
001-14207 on Forms 8-A filed with the Commission on August 27,
1993 and June 8, 1998, respectively, pursuant to Section 12(b) of
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
in which there is described the terms, rights and provisions
applicable to the Registrant's outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the 1934 Act after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which de-registers all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference herein 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 subsequently filed
document which also 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.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
Section 145 of the Delaware General Corporation Law, as amended
(the "DGCL"), provides that a corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding, if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a corporation similarly may indemnify any such
person serving in any such capacity who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor, against expenses
actually and reasonably incurred in connection with the defense or settlement of
such action or suit if he
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acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation and except that no
indemnification shall be made with respect to any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Delaware Court of Chancery or such other
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Section 102(b)(7) of the DGCL permits a corporation to include in
its certificate of incorporation a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of a director for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) any acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) any unlawful payment of
dividends or any unlawful stock purchase or redemption or (iv) any transaction
from which the director derived an improper personal benefit.
The Registrant's Certificate of Incorporation provides that the
Registrant's directors shall not be liable to the Registrant or its stockholders
for monetary damages for breach of their fiduciary duties as directors, except
to the extent that exculpation from liabilities is not permitted under the DGCL
as in effect at the time such liability is determined. The Registrant has
entered into indemnification agreements with all of its officers and directors,
as permitted by the DGCL.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference
is made to Registrant's Registration Statements on Forms
8-A, together with any exhibits thereto, which are
incorporated herein by reference pursuant to Item 3(c) to
this Registration Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in
Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this
Registration Statement.
99.1 InSite Vision Incorporated 1994 Stock Option Plan.
99.2 InSite Vision Incorporated 1994 Employee Stock Purchase Plan
(As Amended and Restated through April 17, 2000).
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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 1933 Act, (ii) to reflect in the prospectus any facts
or events arising after the effective date of this 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 this
Registration Statement and (iii) to include any material information with
respect to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those clauses is contained in periodic reports filed by the
Registrant pursuant to Section 13
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or Section 15(d) of the 1934 Act that are incorporated by reference into this
Registration Statement; (2) that for the purpose of determining any liability
under the 1933 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; 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 Registrant's 1994 Stock Option Plan and 1994
Employee Stock Purchase Plan.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
1934 Act that is incorporated by reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnification provisions summarized in Item 6 above
or otherwise, the Registrant has been advised that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 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 1933 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, 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 Alameda, State of California on this
10th day of August, 2000.
INSITE VISION INCORPORATED
By: /s/ S. KUMAR CHANDRASEKARAN, PH.D.
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S. Kumar Chandrasekaran, Ph.D.
Chairman of the Board, President, Chief
Executive Officer and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of InSite Vision
Incorporated, a Delaware corporation, do hereby constitute and appoint S. Kumar
Chandrasekaran, Ph.D., Chairman of the Board, President, Chief Executive Officer
and Chief Financial Officer, the lawful attorney-in-fact and agent with full
power and authority to do any and all acts and things and to execute any and all
instruments which said attorney and agent determines may be necessary or
advisable or required to enable said corporation to comply with the Securities
Act of 1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and authority,
the powers granted include the power and authority to sign the names of the
undersigned officers and directors in the capacities indicated below to this
Registration Statement, to any and all amendments, both pre-effective and
post-effective, and supplements to this Registration Statement, and to any and
all instruments or documents filed as part of or in conjunction with this
Registration Statement or amendments or supplements thereof, and each of the
undersigned hereby ratifies and confirms that all said attorney and agent shall
do or cause to be done by virtue hereof. This Power of Attorney may be signed in
several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this
Power of Attorney as of the date indicated.
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.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ S. KUMAR CHANDRASEKARAN, PH.D. Chairman of the Board, President, August 10, 2000
---------------------------------- Chief Executive Officer and Chief
S. Kumar Chandrasekaran, Ph.D. Financial Officer (Principal Executive
Officer and Principal Financial and
Accounting Officer)
/s/ MITCHELL H. FRIEDLAENDER, M.D. Director August 10, 2000
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Mitchell H. Friedlaender, M.D.
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ JOHN L. MATTANA Director August 7, 2000
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John L. Mattana
/s/ JON S. SAXE Director August 8, 2000
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Jon S. Saxe
Director
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Anders P. Wiklund
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EXHIBIT INDEX
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Exhibit Number Exhibit
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4 Instruments Defining the Rights of Stockholders. Reference is
made to Registrant's Registration Statements on Forms 8-A,
together with any exhibits thereto, which are incorporated
herein by reference pursuant to Item 3(c) to this Registration
Statement.
5 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration
Statement.
99.1 InSite Vision Incorporated 1994 Stock Option Plan.
99.2 InSite Vision Incorporated 1994 Employee Stock Purchase Plan (As Amended and
Restated through April 17, 2000)
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