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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 29, 2000
REGISTRATION NO. 333-
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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SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 77-0148208
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3400 West Warren Avenue
Fremont, California 94538
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(Address of Principal Executive Offices) (Zip Code)
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SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
2001 EMPLOYEE STOCK PURCHASE PLAN
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(Full title of plan)
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C. Russell Trenary III
3400 West Warren Avenue
Fremont, California 94538
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(Name and address of agent for service)
(510) 623-9001
(Telephone number, including area code,
of agent for service)
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Copy to:
John W. Kauffman, Esquire
Duane, Morris & Heckscher LLP
4200 One Liberty Place
Philadelphia, Pennsylvania 19103-7396
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered(1) price per share(2) offering price(2) registration fee
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<S> <C> <C> <C> <C>
Common Stock, 300,000 shares $ 1.86 $ 558,000 $ 140
par value $.001
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(1) This registration statement registers shares to be offered and sold under
Registrant's 2001 Employee Stock Purchase Plan. This registration statement
also registers such additional shares as may be required to be issued under
these plans in the event of a stock dividend, reverse stock split,
split-up, reclassification and/or other similar event.
(2) Pursuant to paragraph (h) of Rule 457, the proposed maximum offering price
per share and the proposed maximum aggregate offering price have been
computed on the basis of $1.86 per share, the average of the high and low
prices of the Common Stock of the Company on The Nasdaq National Market on
December 26, 2000.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following material is incorporated herein by reference:
(a) The Annual Report on Form 10-K of Sunrise Technologies International,
Inc. (the "Company") for the fiscal year ended December 31, 1999 as filed by the
Company with the Securities and Exchange Commission (the "Commission") on March
30, 2000;
(b) The Company's Form 10-Q Report for the quarter ended March 31, 2000 as
filed by the Company with the Commission on May 15, 2000;
(c) The Company's Form 8-K Current Report as filed with the Commission on
July 17, 2000;
(d) The Company's Form 10-Q Report for the quarter ended June 30, 2000 as
filed by the Company with the Commission on August 11, 2000;
(e) The Company's Form 10-Q Report for the quarter ended September 30,
2000 as filed by the Company with the Commission on November 14, 2000;
(f) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form S-3 filed with the Commission under the
Securities Act of 1933, as amended, on February 23, 1999 (File No. 333-72829),
including any amendment or report filed for the purpose of updating such
description.
All reports or other documents filed pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act") subsequent to the date of this Registration Statement, in each case filed
by the Company prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or that 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
reports and documents. Any statement contained in a document incorporated or
deemed to be incorporated herein by reference shall be deemed to be modified or
superseded for the purposes 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 herein by reference, modifies or
supersedes such statement. Any 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.
No answer to this item is required because the class of securities to be
offered is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Eric M. Fogel, a partner with the law firm of Duane Morris & Heckscher LLP,
counsel for the Company, is currently the Secretary of Sunrise and certain of
such firm's partners own an aggregate of 20,000 shares of common stock of the
Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
(the "Delaware Law") grants corporations the right to limit or eliminate the
personal liability of their directors in certain circumstances in accordance
with provisions therein set forth. The Company's Certificate of Incorporation
contains a provision eliminating director liability to the Company and its
stockholders for monetary damages for breach of fiduciary duty as a director.
The provision does not, however, eliminate or limit the personal liability of a
director: (1) for any breach of such director's duty of loyalty to the Company
or its stockholders; (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law; (iii) under the
Delaware statutory provision making directors personally liable for improper
payment of dividends or improper stock purchases or redemptions; or (iv) for any
transaction from which the director derived an improper personal benefit. This
provision offers persons who serve on the Company's Board protection against
awards of monetary damages resulting from breaches of their duty of care (except
as indicated above). As a result of this provision, the ability of the Company
or a stockholder thereof to successfully prosecute an action against a director
for a breach of his duty of care is limited. However, the provision does not
affect the availability of equitable remedies such as an injunction or
rescission based upon a director's breach of his duty of care. The Securities
and Exchange Commission has taken the position that the provision will have no
effect on claims arising under federal securities laws.
Section 145 of the Delaware Law grants corporations the right to indemnify
their directors, officers, employees and agents in accordance with the
provisions therein set forth. The Company's Bylaws provide that the corporation
shall, subject to limited exceptions, indemnify its directors and executive
officers to the fullest extent not prohibited by the Delaware Law. The Company's
Bylaws provide further that the Company shall have the power to indemnify its
other officers, employees and their agents as set forth in the Delaware Law.
Such indemnification rights include reimbursement for expenses incurred by such
director, executive officer, other officer, employee or agent in advance of the
final disposition of such proceeding in accordance with the applicable
provisions of the Delaware Law.
The Company has entered into agreements with certain of its directors and
officers pursuant to which the Company has agreed to indemnify such directors
and officers to the fullest
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extent permitted under applicable law. In addition, the Company has purchased
insurance containing customary terms and conditions as permitted by law on
behalf of its directors and officers, which may cover liabilities under the
Securities Act of 1933, as amended.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No answer to this item is required because no restricted securities are to
be reoffered or resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS.
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4.1 Sunrise Technologies International, Inc. 2001 Employee Stock Purchase
Plan.
5.1 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion
filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
24 Power of Attorney (included on the signature pages hereto).
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ITEM 9. UNDERTAKINGS.
The registrant hereby undertakes:
(a) 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 (the "Act");
(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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
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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)(1)(i) and (a)(1)(ii) of this Item 9 do
not apply if the Registration Statement is on Form S-3, Form S-8 or Form F-3,
and the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration Statement.
(b) that for the purpose of determining any liability under the 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 offer thereof; and
(c) 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.
The undersigned registrant hereby further undertakes that, for purposes of
determining any liability under the Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (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 the initial bona fide offering thereof.
The undersigned registrant hereby further undertakes that, insofar as
indemnification for liabilities arising under the Act may be permitted to
directors, officers and controlling persons of the registrant, the registrant
has been advised that in the opinion of the 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 Fremont, State of California on December 28, 2000.
SUNRISE TECHNOLOGIES INTERNATIONAL, INC.
By: /s/ C. Russell Trenary, III
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C. Russell Trenary, III,
President and Chief Executive Officer
Know all men by these presents, that each person whose signature appears
below constitutes and appoints C. Russell Trenary and Peter E. Jansen, and each
or either of them, as such person's true and lawful attorneys-in-fact and
agents, with full power of substitution, for such person, and in such person's
name, place and stead, in any and all capacities to sign any or all amendments
or 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 full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them or their substitutes, 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 below by the following persons in
the capacities and on the date indicated.
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Signature Title Date
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/s/ C. Russell Trenary, III President, Chief Executive Officer December 28, 2000
------------------------------------ and Director
C. Russell Trenary, III (Principal Executive Officer)
/s/ Peter E. Jansen Vice President - Finance December 28, 2000
------------------------------------ Chief Financial Officer
Peter E. Jansen (Principal Financial Officer)
/s/ John N. Hendrick Chief Operating Officer and December 28, 2000
--------------------------- Director
John N. Hendrick
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Signature Title Date
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/s/ R. Dale Bowerman Director December 28, 2000
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R. Dale Bowerman
/s/ Alan H. Magazine Director December 28, 2000
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Alan H. Magazine
/s/ Michael S. McFarland Director December 28, 2000
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Michael S. McFarland
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EXHIBIT INDEX
(PURSUANT TO ITEM 601 OF REGULATION S-K)
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EXHIBIT NO. EXHIBIT
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4.1 Sunrise Technologies International, Inc. 2001 Employee Stock Purchase
Plan.
5.1 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion
filed as Exhibit 5.1).
23.2 Consent of PricewaterhouseCoopers LLP, independent accountants.
24 Power of Attorney (included on the signature pages hereto).
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