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As filed with the Securities and Exchange Commission on October 3, 2000
Registration No. 333-______
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INNERDYNE, INC.
(Exact name of issuer as specified in its charter)
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DELAWARE 87-0431168
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
1244 REAMWOOD AVENUE, SUNNYVALE, CA 94089
(Address of principal executive offices) (Zip Code)
INNERDYNE, INC.
DEFINED CONTRIBUTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
WILLIAM G. MAVITY
PRESIDENT AND CHIEF EXECUTIVE OFFICER
INNERDYNE, INC.
1244 REAMWOOD AVENUE
SUNNYVALE, CALIFORNIA 94089
(Name and address of agent for service)
(408) 745-6010
(Telephone number, including area code, of agent for service)
Copy to:
PAUL BORDEN, ESQ.
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 SANSOME STREET
SAN FRANCISCO, CALIFORNIA 94111
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
REGISTERED PER SHARE PRICE FEE*
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2000 Employee Stock
Purchase Plan: 50,000 shares $4.914 (1) $245,703.125 (1) $64.87
Common Stock
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Defined Contribution
Plan: 25,000 shares $5.781 (3) $144,531.25 (3) $38.16
Common Stock (2)
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(1) Estimated solely for the purpose of calculating the registration fee on
the basis of $4.914 per share, the average of the high and low prices
for the Common Stock on September 27, 2000 as reported by the NASDAQ
Stock Exchange, multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced
Plan.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(3) Estimated solely for the purpose of calculating the registration fee on
the basis of $5.781 per share, the average of the high and low prices
for the Common Stock on September 27, 2000 as reported by the NASDAQ
Stock Exchange.
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PART I
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The following documents are incorporated by reference in this
registration statement:
(a) The latest annual report of the Registrant filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act").
(b) The latest annual report of the Defined Contribution Plan, filed
pursuant to Section 13(a) or 15(d) of the Exchange Act.
(c) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
Registrant document referred to in (a) above.
(d) The description of the Registrant's common stock contained in
the registration statements filed under Section 12 of the
Exchange Act, including any subsequent amendments or reports
filed for the purpose of updating that information.
All documents filed by the Registrant or the Defined Contribution
Plan after the date of this registration statement pursuant to Sections 13(a),
13(c), 14, and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment (that indicates all securities offered have been sold
or 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.
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of
Delaware (the "Delaware Law") authorizes a Delaware corporation to indemnify
officers, directors, employees and agents of the corporation, in connection with
actual or threatened actions, suits or proceedings provided that such officer,
director, employee or agent acted in good faith and in a manner such officer
reasonably believed to be in or not opposed to the corporation's best interests,
and, for criminal proceedings, had no reasonable cause to believe his or her
conduct
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was unlawful. This authority is sufficiently broad to permit indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act.
The Registrant's Certificate of Incorporation and Bylaws provide
for indemnification of officers and directors to the fullest extent permitted by
Delaware Law. In addition, the Registrant has, and intends in the future to
enter into, agreements to provide indemnification for directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Inapplicable.
ITEM 8. EXHIBITS.
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Internal Revenue Service ("IRS") Determination Letter concerning the
qualification of the InnerDyne, Inc. Merrill Lynch Prototype Defined
Contribution Plan, dated June 29, 1993.
23.1 Consent of Independent Auditor.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit
5.1 to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 InnerDyne, Inc. Defined Contribution Plan.
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;
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(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)(l)(i) and (a)(l)(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 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 (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 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 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
THE REGISTRANT
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 Sunnyvale, State of California, on September 18,
2000.
INNERDYNE, INC.
(Registrant)
By: /s/ William G. Mavity
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William G. Mavity
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints William G. Mavity, and each of them, his
or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and in his or her 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 attorney-in-fact and
agent 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 or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or her substitutes or
substitute, may lawfully do or cause to be done by virtue hereof.
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 dates indicated.
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SIGNATURE TITLE DATE
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Principal Executive Officer:
/s/ William G. Mavity
----------------------------- President and Chief September 18, 2000
William G. Mavity Executive Officer; acting
Chief Financial Officer
(Principal Executive,
Financial and Accounting
Officer)
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<TABLE>
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Directors:
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/s/ Edward W. Benecke
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Edward W. Benecke Director September 19, 2000
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Robert M. Curtis Director _______________, 2000
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John A. Hinds Director _______________, 2000
/s/ William G. Mavity
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William G. Mavity Director September 18, 2000
/s/ Steven N. Weiss
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Steven N. Weiss Director September 18, 2000
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A majority of the members of the Board of Directors.
THE PLAN
Pursuant to the requirements of the Securities Act of 1933, the
InnerDyne, Inc. Defined Contribution Plan has duly caused this registration
statement to be signed on its behalf by the undersigned, hereunto duly
authorized, in the City of Sunnyvale, State of California, on September 18,
2000.
INNERDYNE, INC. DEFINED CONTRIBUTION PLAN
By: /s/ William G. Mavity
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William G. Mavity
President and Chief Executive Officer
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EXHIBIT INDEX
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Exhibit
No.
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5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
5.2 Internal Revenue Service ("IRS") Determination Letter concerning the
qualification of the InnerDyne, Inc. Merrill Lynch Prototype Defined
Contribution Plan, dated June 29, 1993.
23.1 Consent of Independent Auditor.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is included in Exhibit
5.1 to this Registration Statement.
24.1 Power of Attorney (included on signature page).
99.1 InnerDyne, Inc. Defined Contribution Plan.
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