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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 29, 1999
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, AS AMENDED
VISX, INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 06-1161793
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION IDENTIFICATION NO.)
OR ORGANIZATION)
3400 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95051
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
1995 STOCK PLAN
(FULL TITLE OF THE PLAN)
MARK B. LOGAN
CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER
VISX, INCORPORATED
3400 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95051
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
COPIES TO:
KINA LAMBLIN, ESQ.
VISX, INCORPORATED
3400 CENTRAL EXPRESSWAY
SANTA CLARA, CALIFORNIA 95051
(408) 733-2020
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE REGISTERED(1) AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
REGISTERED PER SHARE PRICE(2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
1995 Stock Plan
Common Stock, $0.01 par value............. 923,971 $93.3125 $86,218,043.93 $23,968.62
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein.
(2) Calculated solely for the purpose of this offering under Rule 457(h) of the
Securities Act, on the basis of the average of the high and low selling
prices per share of Common Stock on March 25, 1999 as reported on the Nasdaq
National Market.
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</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE.
The following documents and information previously filed with the Securities
and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998 filed pursuant to Section 13 of the Securities Exchange Act
of 1934 (the "Exchange Act").
(b) The description of the Common Stock of the Registrant that is
contained in the Registration Statement on Form 8-A/A filed pursuant to
Section 12 of the Exchange Act on November 13, 1995.
(c) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this
Registration Statement and 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 the 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.
The Registrant has adopted provisions in its Certificate of Incorporation
that eliminate the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law and authorizes the Registrant to
indemnify its directors and officers to the fullest extent permitted by law.
Such limitation of liability does not affect the availability of equitable
remedies such as injunctive relief or rescission.
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and officers to the fullest extent permitted by the General
Corporation Law of Delaware, including circumstances in which indemnification is
otherwise discretionary under Delaware law. Section 145 of the General
Corporation Law of Delaware provides for the indemnification of officers,
directors and other corporate agents in terms sufficiently broad to indemnify
such persons, under certain circumstances, for certain liabilities (including
reimbursement of expenses incurred) arising under the Securities Act of 1933.
The Registrant has entered into indemnification agreements to such effect with
its officers and directors containing provisions which are in some respects
broader than the specific indemnification provisions contained in the General
Corporation Law of Delaware. The indemnification agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature) and to advance their expenses incurred as a result of any
proceeding against them as to which they could be indemnified. The form of such
indemnification agreement has been approved by the Company's stockholders.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality of
securities being registered
10.1 1995 Stock Plan (previously filed as Exhibit 10.1 to Form S-8 Registration
Statement No. 333-23999)
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit
5.1.hereto)
24.1 Power of Attorney (see page 6)
</TABLE>
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 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, 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, 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 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
an initial bona fide offering thereof.
(c) 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 Clara, State of California on March 29, 1999.
VISX, INCORPORATED
By: /s/ MARK B. LOGAN
---------------------------------
Mark B. Logan, Chairman of the Board
and Chief Executive Officer
By: /s/ TIMOTHY R. MAIER
---------------------------------
Timothy R. Maier, Executive Vice
President,
Chief Financial Officer and Treasurer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Mark B. Logan and Timothy R. Maier, jointly and
severally, his or her attorneys-in-fact, each with the power of substitution,
for him or her 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, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
PRINCIPAL EXECUTIVE OFFICER:
/s/ MARK B. LOGAN Chairman of the Board, Chief March 29, 1999
- ----------------------------------- Executive Officer and Director*
Mark B. Logan
PRINCIPAL FINANCIAL OFFICER:
/s/ TIMOTHY R. MAIER Executive Vice President, March 29, 1999
- ----------------------------------- Chief Financial Officer and
Timothy R. Maier Treasurer
PRINCIPAL ACCOUNTING OFFICER:
/s/ DEREK A. BERTOCCI Vice President, Controller March 29, 1999
- -----------------------------------
Derek A. Bertocci
/s/ ELIZABETH H. Davila President, Chief Operating March 29, 1999
- ----------------------------------- Officer and Director*
Elizabeth H. Davila
Director* March __, 1999
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Glendon E. French
/s/ JOHN W. GALIARDO Director* March 29, 1999
- --------------------------------------
John W. Galiardo
/s/ JAY T. HOLMES Director* March 29, 1999
- --------------------------------------
Jay T. Holmes
/s/ RICHARD B. SAYFORD Director* March 29, 1999
- --------------------------------------
Richard B. Sayford
</TABLE>
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* The employee benefit plan being registered pursuant to this Registration
Statement is subject to administration by the Board of Directors of the
Registrant.
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<TABLE>
<CAPTION>
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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<S> <C>
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality of
securities being registered
10.1 1995 Stock Plan (previously filed as Exhibit 10.1 to Form S-8
Registration Statement No. 333-23999)
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit
5.1 hereto)
24.1 Power of Attorney (see page 6)
</TABLE>
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EXHIBIT 5.1
March 29, 1999
VISX, Incorporated
3400 Central Expressway
Santa Clara, CA 95051
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by you
with the Securities and Exchange Commission on or about March 29, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of Nine Hundred Twenty-Three Thousand Nine
Hundred Seventy-One (923,971) shares (the "Shares") of Common Stock issuable
pursuant to the 1995 Stock Plan (the "Plan"). As legal counsel for VISX,
Incorporated, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the issuance and sale
of the Shares pursuant to the Plan.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plan and pursuant to the agreement that accompanies each grant
under the Plan, 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 and any amendments thereto.
Very truly yours,
/s/ Wilson Sonsini Goodrich & Rosati
------------------------------------
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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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 this registration statement of our Report dated
January 18, 1999 included in the Form 10-K of VISX, Incorporated for the year
ended December 31, 1998.
/s/ Arthur Andersen LLP
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ARTHUR ANDERSEN LLP
San Jose, California
March 24, 1999
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