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As filed with the Securities and Exchange Commission on July 13, 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
ECLIPSE SURGICAL TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 77-0223740
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(STATE OF INCORPORATION) (I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
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1049 KIEL AVENUE
SUNNYVALE, CALIFORNIA 94089
(408) 548-1200
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STOCK OPTION PLAN
1996 EMPLOYEE STOCK PURCHASE PLAN
DIRECTOR STOCK OPTION PLAN
(FULL TITLE OF THE PLANS)
RICHARD P. POWERS
EXECUTIVE VICE PRESIDENT, ADMINISTRATION AND CHIEF FINANCIAL OFFICER
1049 KIEL AVENUE
SUNNYVALE, CALIFORNIA 94089
(408) 548-1200
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies to:
SUSAN J. SKAER, ESQ.
GENERAL COUNSEL ASSOCIATES LLP
1891 LANDINGS DRIVE
MOUNTAIN VIEW, CA 94043
(650) 428-3900
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered Registered Share Price Fee
- ------------------------- ---------------------- ---------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, no par
value.................. 1,375,000 shares (1) $10.78125(2) $14,824,218.75(2) $ 4,121.13
TOTAL.............. 1,375,000 shares --- $14,824,218.75(2) $ 4,121.13
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(1) This subtotal represents the sum of shares issuable upon exercise of options
that have not yet been granted under the Stock Option Plan, the 1996 Employee
Stock Purchase Plan and the Director Stock Option Plan, as of the date of this
Registration Statement.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of calculating the total registration fee. Computation
based upon the average of the high and low prices of the Common Stock as
reported on the Nasdaq National Market on July 8, 1999 because the price at
which the options to be granted in the future may be exercised is not currently
determinable.
PART II:
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information heretofore filed by Eclipse
Surgical Technologies, Inc. (the "Registrant") with the Securities and Exchange
Commission (the "Commission") are hereby incorporated by reference:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998;
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 30, 1999;
(c) Registrant's Definitive Proxy Materials filed with the Commission on
June 1, 1999;
(d) Registrant's Current Report on Form 8-K filed with the Commission on
March 26, 1999;
(e) The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated April 19, 1996.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date hereof, 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 this Registration Statement and to be 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.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 204 of the General Corporation Law of the State of California
("California Law") authorizes a corporation to adopt a provision in its articles
of incorporation eliminating the personal liability of directors to corporations
and their shareholders for monetary damages for breach or alleged breach of
directors' "duty of care." Following a California corporation's adoption of such
a provision, its directors are not accountable to corporations and their
shareholders for monetary damages for conduct constituting negligence (or gross
negligence) in the exercise of their fiduciary duties; however, directors
continue to be subject to equitable remedies such as injunction or rescission.
Under California Law, a director also continues to be liable for (1) a breach of
his or her duty of loyalty; (2) acts or omissions not in good faith or involving
intentional misconduct or knowing violations of law; (3) illegal payments of
dividends; and (4) approval of any transaction from which a director derives an
improper personal benefit. The adoption of such a provision in the articles of
incorporation also does not limit directors' liability for violations of the
federal securities laws.
Section 317 of the California Law makes a provision for the indemnification
of officers, directors and other corporate agents in terms sufficiently broad to
indemnify such persons, under certain circumstances, for liabilities (including
reimbursement for expenses incurred) arising under the Securities Act of 1933,
as amended (the "Securities Act"). An amendment to Section 317 provides that the
indemnification provided by this section is not exclusive to the extent
additional rights are authorized in a corporation's articles of incorporation.
Article IV of the Registrant's Restated Articles of Incorporation and
Article VI of the Registrant's Amended and Restated Bylaws provide for
indemnification of its directors, officers, employees and other agents to the
maximum extent permitted by California Law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8 EXHIBITS
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Exhibit
Number Document
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4.1 Stock Option Plan (filed as Exhibit 10.2 to the Registration
Statement on Form S-1, file number 333-03770 and incorporated
herein by reference).
4.2 Director Stock Option Plan (filed as Exhibit 10.3 to the
Registration Statement on Form S-1, file number 333-03770 and
incorporated herein by reference).
4.3 1996 Employee Stock Purchase Plan (filed as Exhibit 10.4 to the
Registration Statement on Form S-1, file number 333-03770 and
incorporated herein by reference).
5.1 Opinion of General Counsel Associates LLP.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 Consent of General Counsel Associates LLP (contained in
Exhibit 5.1 hereto).
24.1 Power of Attorney (included on the signature page to the
Registration Statement; see pages II-5).
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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
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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 of 1933 (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
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.
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 of 1933, the Registrant,
ECLIPSE SURGICAL TECHNOLOGIES, INC., a corporation organized and existing under
the laws of the State of California, 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 July 13, 1999.
ECLIPSE SURGICAL TECHNOLOGIES, INC.
By: /s/Richard P. Powers
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Richard P. Powers, Executive Vice President,
Administration and Chief Financial Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Allen W. Hill, Richard P. Powers and
Susan J. Skaer, jointly and severally, as 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 or her substitute or substitutes, may 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 on July 13, 1999
in the capacities indicated.
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SIGNATURES TITLE
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/s/ Douglas Murphy-Chutorian Chairman of the Board of Directors
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DOUGLAS MURPHY-CHUTORIAN
/s/ Allen W. Hill President, Chief Executive Officer and Director
- ---------------------------- (Principal Executive Officer)
ALLEN W. HILL
/s/ Richard P. Powers Executive Vice President, Administration and
- ---------------------------- Chief Financial Officer
RICHARD P. POWERS (Principal Financial and Accounting Officer)
and Assistant Secretary
/s/ Alan L. Kaganov Director
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ALAN L. KAGANOV
/s/ Robert L. Mortensen Director
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ROBERT L. MORTENSEN
/s/ Jack M. Gill Director
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JACK M. GILL
/s/ Robert C. Strauss Director
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ROBERT C. STRAUSS
/s/ Iain M. Watson Director
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IAIN M. WATSON
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EXHIBIT INDEX
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Exhibit
Number Document
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5.1 Opinion of Counsel as to Legality of Securities Being Registered.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1 hereto).
24.2 Power of Attorney (see page 5).
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EXHIBIT 5.1
OPINION OF COUNSEL
July 13, 1999
ECLIPSE SURGICAL TECHNOLOGIES, INC.
1049 Kiel Avenue
Sunnyvale, California 94089
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 July 13, 1999 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of a total of 1,375,000 shares of your
Common Stock (the "Shares") reserved for issuance under the Stock Option Plan,
the 1996 Employee Stock Purchase Plan and the Director Stock Option Plan (the
"Plans"). As legal counsel for ECLIPSE SURGICAL TECHNOLOGIES, INC., we have
examined the proceedings taken and are familiar with the proceedings proposed to
be taken by you in connection with the sale and issuance of the Shares under the
Plans.
It is our opinion that, when issued and sold in the manner referred to in
the Plans and pursuant to the agreement which accompanies each grant under the
Plans, the Shares will be legally and validly issued, fully paid and
nonassessable.
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 it appears in the
Registration Statement and any amendments thereto.
Very truly yours,
GENERAL COUNSEL ASSOCIATES LLP
/s/ General Counsel Associates LLP
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EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 29, 1999, except for note 14
which is dated March 17, 1999, relating to the financial statements, which
appears in the 1998 Annual Report to Shareholders of Eclipse Surgical
Technologies, Inc., which is included in Eclipse's Annual Report on Form 10-K
for the year ended December 31, 1998. We also consent to the incorporation by
reference of our report dated January 29, 1999, except for note 14 which is
dated March 17, 1999, relating to the financial statement schedule, which
appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
San Jose, California
July 13, 1999
