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As filed with the Securities and Exchange Commission on June 23, 1995.
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VIVRA INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware 94-3096645
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
400 Primrose, Suite 200
Burlingame, California 94010
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(Address of Principal (Zip Code)
Executive Offices)
VIVRA INCORPORATED REVISED 1989 STOCK INCENTIVE PLAN
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(Full title of the plan)
LEANNE ZUMWALT Copy to:
Secretary and Treasurer JONATHAN M. OCKER, ESQ.
VIVRA INCORPORATED NANCY M. VU, ESQ.
400 Primrose, Suite 200 Pillsbury Madison & Sutro
Burlingame, California 94010 2700 Sand Hill Road
(415) 348-8200 Menlo Park, California 94025-7020
(415) 233-4500
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(Name, address and telephone (Counsel to the Registrant)
number, including area code,
of agent for service)
<TABLE>
<CAPTION>
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Title of Securities To Amount To Be Proposed Maximum Proposed Maximum Amount of Registration
Be Registered Registered(1) Offering Price Per Aggregate Offering Fee(3)
Share Price(2)
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<S> <C> <C> <C> <C>
Common Stock........ 700,000 $30.75 $21,525,000 $7,422
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</TABLE>
(1) Consists of 700,000 shares that are being registered pursuant to the
Vivra Incorporated Revised 1989 Stock Incentive Plan.
(2) Estimated solely for the purpose of calculating the registration fee
on the basis of the average of the high and low prices as reported on the New
York Stock Exchange on June 21, 1995.
(3) The registration fee has been calculated pursuant to Rule 457(h).
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The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance with
Rule 428 under the Securities Act of 1933 and the Note to Part I of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission are incorporated by reference in this Registration
Statement:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended November 30, 1994 (Commission File No. 1-10261).
(2) The information with regard to the Registrant's capital stock
contained in the Registration Statement on Form S-1 filed on April 19,
1990, Registration No. 33-34438, including any subsequent amendment or
report filed for the purpose of updating such information.
(3) All other reports filed by the Registrant since November 30,
1994 with the Commission pursuant to section 13(a) or 15(d) of the
Securities Exchange Act of 1934.
In addition, all documents subsequently filed by Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934,
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.
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Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the State of Delaware,
the state in which the Registrant is incorporated, a Delaware corporation has
the power, under specified circumstances, to indemnify its directors, officers,
employees and agents in connection with actions, suits or proceedings brought
against them by a third party, or by or in the right of the corporation, by
reason of the fact that they were or are such directors, officers, employees or
agents. In general, Section 145 provides that a corporation has the power to
indemnify directors, officers, employees or agents where the individual acted in
good faith and in a manner such individual 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 such
individual's conduct was unlawful. In circumstances where the individual shall
have been adjudged to be liable for negligence or misconduct in the performance
of such individual's duty to the corporation, indemnification will be allowed
only to the extent that the court considering the action decides, in view of the
circumstances, the individual is entitled to indemnity.
The directors and officers of the Registrant and its subsidiaries are
covered by policies of insurance under which they are insured, within limits and
subject to the limitations of the policies, against certain expenses in
connection with the defense of actions, suits or proceedings, and certain
liabilities which might be imposed as a result of such actions, suits or
proceedings, in which they are parties by reason of being or having been
directors or officers; the Registrant is similarly insured, with respect to
certain payments it might be required to make its directors or officers under
the applicable statutes and its charter provisions.
As permitted by sections 102 and 145 of the Delaware GCL, Article Eight of
the Company's Certificate of Incorporation eliminates a director's personal
liability for monetary damages to the Company and its stockholders arising from
a breach of fiduciary duty as a director, except for liability (a) for any
breach of the director's duty of loyalty to the Registrant and its stockholders;
(b) for acts or omissions not in good faith or which involve intentional
misconduct or knowing violations of law; (c) under Section 174 of the Delaware
General Corporation Law; or (d) for any transaction from which the director
derived an improper personal benefit.
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The Company has entered into separate indemnification agreements with its
directors and officers that will require the Company, among other things, to
indemnify them against certain liabilities that may arise by reason of their
status or service as directors or officers to the fullest extent not prohibited
by law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Index to Exhibits.
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;
(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 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
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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 further 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 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
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 Burlingame, State of California, on June 19, 1995.
VIVRA INCORPORATED
By /s/ LEANNE ZUMWALT
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Leanne Zumwalt
Director and
Vice President, Finance
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Leanne Zumwalt and each of them, his or her true
and lawful attorneys-in-fact and agents, each with full power of substitution
and resubstitution, for him and in his 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 exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorneys-in-fact and agents, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or his substitute or substitutes, may do or cause
to be done by virtue hereof.
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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 date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ KENT J. THIRY Director, President June 19, 1995
- ----------------------------- and Chief Executive
(Kent J. Thiry) Officer (Principal
Executive Officer)
/s/ LEANNE ZUMWALT Director and Vice June 19, 1995
- ----------------------------- President-Finance;
(Leanne Zumwalt) Treasurer and
Secretary (Principal
Accounting Officer
and Principal
Financial Officer)
/s/ DAVID G. CONNOR, M.D. Director June 19, 1995
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(David G. Connor, M.D.)
/s/ RICHARD B. FONTAINE Director June 19, 1995
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(Richard B. Fontaine)
/s/ JOHN M. NEHRA Director June 19, 1995
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(John M. Nehra)
/s/ STEPHEN G. PAGLIUCA Director June 19, 1995
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(Stephen G. Pagliuca)
*By /s/ LEANNE ZUMWALT June 19, 1995
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(Attorney-in-Fact)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
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<S> <C> <C>
3.1 Certificate of Incorporation of the *
Registrant.
3.2 Bylaws of the Registrant. **
5.1 Opinion regarding legality of securities 9
to be offered.
23.1 Consent of Ernst & Young LLP Independent 10
Auditors.
23.2 Consent of Pillsbury Madison & Sutro
(included in Exhibit 5.1).
24.1 Power of Attorney (see page 6).
</TABLE>
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* Incorporated by reference to Exhibit 3.1 to the Registrant's Report on Form
10-K, filed February 3, 1995.
** Incorporated by reference to Exhibit 3.2 to the Registrant's Report on Form
10-K, filed February 3, 1995.
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EXHIBIT 5.1
June 23, 1995
Vivra Incorporated
400 Primrose, Suite 200
Burlingame, CA 94010
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Vivra Incorporated, a Delaware corporation (the "Company"), with the Securities
and Exchange Commission under the Securities Act of 1933, relating to 700,000
shares of the Company's Common Stock issuable pursuant to VIVRA Incorporated
Revised 1989 Stock Incentive Plan (the "Plan"), it is our opinion that such
shares of the Common Stock of the Company, when issued and sold in accordance
with the Plan will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO
06260
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8 No. 33-00000) pertaining to the VIVRA Incorporated Revised 1989 Stock
Incentive Plan of our report dated January 23, 1995, with respect to the
consolidated financial statements and schedule of VIVRA Incorporated included in
the Annual Report (Form 10-K) for the year ended November 30, 1994.
/s/ ERNST & YOUNG
Orange County, California
June 23, 1995
