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As filed with the Securities and Exchange Commission on September 30, 1997
Registration No. 33-
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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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MEDSTONE INTERNATIONAL, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 66-0439440
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
100 COLUMBIA, SUITE 100
ALISO VIEJO, CALIFORNIA 92656-4114
(Address of principal executive offices)
1997 STOCK INCENTIVE PLAN
(Full title of the plan)
MARK SELAWSKI
CHIEF FINANCIAL OFFICER
100 COLUMBIA, SUITE 100
ALISO VIEJO, CALIFORNIA 92656-4114
(Name and address of agent for service)
(714) 448-7700
(Telephone number, including area code, of agent for service)
COPIES TO:
JON E. JENSEN, ESQ.
CALL, CLAYTON & JENSEN
610 NEWPORT CENTER DRIVE, SUITE 700
NEWPORT BEACH, CALIFORNIA 92660
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED PRICE PER UNIT PRICE REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $10.00(2) $10,000,000(2) $3,030.30
$.004 par value shares (1)
per share
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(1) Pursuant to Rule 416, there are also being registered such additional
securities as may be required for issuance pursuant to the
anti-dilution provisions of the 1997 Stock Incentive Plan.
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(2) Estimated solely for the purpose of computing the registration fee.
Pursuant to Rule 457(c), the calculation of the registration fee is
based on the average of the high and low prices of the registrant's
Common Stock on September 16, 1997 as reported in the NASDAQ National
Market System.
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
a. The registrant's Annual Report on Form 10-K for its fiscal
year ended December 31, 1996, filed pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act").
b. The registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31, 1997 and June 30, 1997 and all other
reports filed pursuant to Section 13(a) of the Exchange Act
since the end of the registrant's fiscal year ended December
31, 1996.
c. The description of the registrant's Common Stock, par value
$.004, contained in its Registration Statement on Form 8-A,
dated May 5, 1988, filed under Section 12 of the Exchange Act,
including any amendment or report filed for the purpose of
updating such description.
In addition, 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 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.
Section 102 of the Delaware General Corporation Law permits a Delaware
corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's personal liability to the corporation or
its stockholders for monetary damages for breaches of fiduciary duty, including
conduct which could be characterized as negligence or gross negligence. The
Delaware General Corporation Law expressly provides, however, that the liability
for breaches of the duty of loyalty, acts or omissions not in good faith or
involving intentional misconduct or knowing violation of the law, the unlawful
purchase or redemption of stock or payment of unlawful dividends or the receipt
of improper personal benefits cannot be eliminated or limited in this manner.
The Delaware General Corporation Law further provides that no such provision
shall eliminate or limit the liability of a director for any act or omission
occurring prior to the date when such provision becomes effective. On October 5,
1987, the registrant filed an amendment to its Certificate of Incorporation
which provides that a director shall not be personally liable to the registrant
or its stockholders for monetary damages for breach of fiduciary duty as a
director to the fullest extent permitted by the Delaware General Corporation
Law.
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Section 145 of the Delaware General Corporation Law makes provision for
the indemnification of officers, directors, employees and agents against
expenses, judgments, fines, settlements and other amounts incurred in connection
with any proceeding arising by reason of the fact that such person is or was an
officer, director, employee or agent of the corporation. Article IX of the
registrant's bylaws provide that the registrant shall have power to indemnify
its officers, directors, employees and agents to the fullest extent permitted by
Section 145 or any applicable provisions of the Delaware General Corporation Law
and Delaware law. Article IX of the Bylaws, and agreements which the registrant
has entered into with its directors and certain officers, also provide that,
subject to certain limitations, such individuals shall be indemnified by the
registrant in connection with their serving the registrant against expenses,
judgments, fines, settlements and other amounts to the fullest extent permitted
by applicable laws.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Item Number as per Item 601 of Regulation S-K
3.1 Certificate of Incorporation of the Company, as amended(1)
3.2 Bylaws of the Company, as amended(2)
5.1 Opinion re legality of Call, Clayton & Jensen, a Professional
Corporation.
10.29 1997 Stock Incentive Plan(3)
23.1 Consent of Call, Clayton & Jensen, a Professional Corporation
(included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
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(1) Previously filed with the same exhibit number with the Company's
Registration Statement on Form S-1 under the Securities Act of 1933, Reg. No.
33-16340, and with the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1988, and incorporated herein by reference.
(2) Previously filed with the same exhibit number with the Company's
Registration Statement on Form S-1 under the Securities Act of 1933, Reg. No.
33-16340, and incorporated herein by reference.
(3) Previously filed with the same exhibit number with the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as amended,
and incorporated herein by reference. Compensatory plan or arrangement
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;
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(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;
(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
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 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 the 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 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to 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 At
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 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 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 Aliso Viejo, State of California, on September 16,
1997.
MEDSTONE INTERNATIONAL, INC.,
a Delaware corporation
(Registrant)
By /s/ Mark Selawski
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Mark Selawski, Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, 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
<S> <C> <C>
/s/ David V. Radlinski Chief Executive Officer September 16, 1997
- ------------------------- (Principal Executive Officer)
David V. Radlinski and Chairman of the Board
/s/ Mark Selawski Chief Financial Officer September 16, 1997
- ------------------------- and Secretary (Principal Financial
Mark Selawski Officer and Principal Accounting
Officer)
/s/ Donald J. Regan
- ------------------------- Director September 16, 1997
Donald J. Regan
/s/ Frank R. Pope
- ------------------------- Director September 16, 1997
Frank R. Pope
/s/ Michael C. Tibbitts
- ------------------------- Director September 16, 1997
Michael C. Tibbitts
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EXHIBIT INDEX
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NUMBER DESCRIPTION PAGE NO.
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3.1 Certificate of Incorporation of the Company, as amended(1)
3.2 Bylaws of the Company, as amended(2)
5.1 Opinion re legality of Call, Clayton & Jensen, a Professional Corporation.
10.29 1997 Stock Incentive Plan(3)
23.1 Consent of Call, Clayton & Jensen, a Professional Corporation. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
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(1) Previously filed with the same exhibit number with the Company's
Registration Statement on Form s-1 under the Securities Act of 1933, Reg. No.
33-16340, and with the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1988, and incorporated herein by reference.
(2) Previously filed with the same exhibit number with the Company's
Registration Statement on Form s-1 under the Securities Act of 1933, Reg. No.
33-16340, and incorporated herein by reference.
(3) Previously filed with the same exhibit number with the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997, as amended,
and incorporated herein by reference. Compensatory plan or arrangement
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Exhibit 5.1
September 25, 1997
Medstone International, Inc.
100 Columbia, Suite 100
Aliso Viejo, CA 92656-4114
Medstone International, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
In connection with your registration under the Securities Act of 1933,
as amended, of 1,000,000 shares of the Common Stock of Medstone International,
Inc., a Delaware corporation (the `Company"), under the Company's Registration
Statement on Form S-8, we advise you that, in our opinion, when such shares have
been issued and sold pursuant to the provisions of the Company's 1997 Stock
Incentive Plan and in accordance with such Registration Statement, such shares
will be duly authorized, validly issued, fully paid and non-assessable shares of
the Company's Common Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
Call, Clayton & Jensen.
A Professional Corporation
jej
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the 1997 Stock Incentive Plan of Medstone
International, Inc. of our report dated February 14, 1997, with respect to the
consolidated financial statements and schedules of Medstone International, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1996,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Irvine, California
September 22, 1997
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