<PAGE> 1
As filed with the Securities and Exchange Commission on March 17, 1999
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
ECLIPSE SURGICAL TECHNOLOGIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------------
<TABLE>
<S> <C> <C>
CALIFORNIA 3845 77-0223470
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
1049 KIEL COURT
SUNNYVALE, CA 94089
(408) 747-0120
</TABLE>
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------------
DOUGLAS MURPHY-CHUTORIAN, M.D.
CHAIRMAN & CHIEF EXECUTIVE OFFICER
1049 KIEL COURT
SUNNYVALE, CA 94089
(408) 747-0120
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------------
Copies to:
JEFFREY D. SAPER, ESQ. BRUCE W. JENETT, ESQ.
J. ROBERT SUFFOLETTA, ESQ. HENRY LESSER, ESQ.
WILSON SONSINI GOODRICH & ROSATI HELLER EHRMAN WHITE & MCAULIFFE
PROFESSIONAL CORPORATION 525 UNIVERSITY AVENUE
650 PAGE MILL ROAD PALO ALTO, CALIFORNIA 94301
PALO ALTO, CA 94304 (650) 324-7000 (TEL)
(650) 493-9300 (TEL) (650) 324-0638 (FAX)
(650) 493-6811 (FAX)
----------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: Upon
Consummation of the Merger described herein.
If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company there is compliance with
General Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. /X/ Reg. No. 333-72063
If this Form is a post-effective amendment pursuant to Rule 462(d) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==============================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE
- -------------------------- ------------- ------------ --------- ------------
<S> <C> <C> <C> <C>
Common Stock, no par value 20,000 shares $ 12.0625 $ 241,250 $ 84.00
==============================================================================================================
</TABLE>
(1) Represents the number of additional shares of Common Stock of the
Registrant which may be issued to former stockholders of CardioGenesis
Corporation ("CardioGenesis") pursuant to the Merger described herein.
(2) Each share of CardioGenesis will be converted into 0.80 of a share of
Common Stock of the Registrant pursuant to the Merger described herein.
Pursuant to Rule 457(f) under the Securities Act of 1933, as amended, the
registration fee has been calculated as of March 15, 1999.
================================================================================
<PAGE> 2
This Registration Statement on Form S-4 filed by the Registrant is filed
pursuant to Rule 462(b) under the Securities Act of 1933, as amended. The
contents of the Registrant's Registration Statement on Form S-4 (File No. 333-
72063), including each of the documents filed by the Registrant with the
Commission and incorporated by reference therein, are hereby incorporated by
reference herein.
<PAGE> 3
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
1. REQUIRED CONSENTS AND OPINIONS
EXHIBIT NO DESCRIPTION
---------- -----------
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
8.1 Tax Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
8.2 Tax Opinion of Heller Ehrman White & McAuliffe.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in opinions filed as Exhibits 5.1 and
8.1).
23.2 Consent of Heller Ehrman White & McAuliffe (included in opinion
filed as Exhibit 8.2).
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of PaineWebber Incorporated.
23.6 Consent of Bear, Stearns & Co. Inc.
24.1 Power of Attorney (see Page II-2).
II-1
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, on the 17th day of March
1999.
ECLIPSE SURGICAL TECHNOLOGIES, INC.
By: /s/ DOUGLAS MURPHY-CHUTORIAN, M.D.
------------------------------------
Douglas Murphy-Chutorian, M.D.
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Douglas Murphy-Chutorian, M.D. and
Kenneth E. Bennert and each of them, jointly and severally, as his true and
lawful attorneys-in-fact and agents, each with full power of substitution for
him and in his name, place and stead in any and all capacities, to sign any and
all 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-of-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 he might or could do in person, hereby ratifying and
confirming all that each said attorneys-in-fact and agent or his substitute or
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 BY THE FOLLOWING PERSONS ON MARCH
17, 1999 IN THE CAPACITIES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
<S> <C>
/s/ DOUGLAS MURPHY-CHUTORIAN, M.D. Chairman of the Board and Chief Executive Officer
- ---------------------------------- (Principal Executive Officer)
(Douglas Murphy-Chutorian, M.D.)
/s/ RICHARD MUELLER, JR. President, Chief Operating Officer
- ---------------------------------- and Director
(Richard Mueller, Jr.)
/s/ KENNETH E. BENNERT Vice President, Finance and
- ---------------------------------- Administration, Chief Financial
(Kenneth E. Bennert) Officer (Principal Financial and
Accounting Officer)
/s/ ALAN L. KAGANOV Director
- ----------------------------------
(Alan L. Kaganov)
/s/ ROBERT L. MORTENSEN Director
- ----------------------------------
(Robert L. Mortensen)
/s/ IAIN M. WATSON Director
- ----------------------------------
(Iain M. Watson)
</TABLE>
II-2
<PAGE> 5
EXHIBIT INDEX
EXHIBIT NO DESCRIPTION
---------- -----------
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
8.1 Tax Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
8.2 Tax Opinion of Heller Ehrman White & McAuliffe.
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in opinions filed as Exhibits 5.1 and
8.1).
23.2 Consent of Heller Ehrman White & McAuliffe (included in opinion
filed as Exhibit 8.2).
23.3 Consent of PricewaterhouseCoopers LLP.
23.4 Consent of PricewaterhouseCoopers LLP.
23.5 Consent of PaineWebber Incorporated.
23.6 Consent of Bear, Stearns & Co. Inc.
24.1 Power of Attorney (see Page II-2).
II-3
<PAGE> 1
EXHIBIT 5.1
March 17, 1999
Eclipse Surgical Technologies, Inc.
1049 Kiel Court
Sunnyvale, CA 94089
RE: REGISTRATION STATEMENT ON FORM S-4
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-4 filed by you
with the Securities and Exchange Commission in connection with the registration
under the Securities Act of 1933, as amended, of 20,000 shares of your Common
Stock, no par value (the "Shares"), to be issued to the stockholders of
CardioGenesis Corporation ("CardioGenesis") in connection with the merger of a
wholly-owned subsidiary of Eclipse with and into CardioGenesis. As counsel to
you in connection with this transaction, we have examined the proceedings
proposed to be taken by you in connection with the issuance of the Shares.
Based upon the foregoing, we are of the opinion that the Shares, when
issued in the manner described in the Registration Statement, will be duly
authorized, 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, including the Prospectus constituting a part thereof,
and any amendment thereto.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI, P.C.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
EXHIBIT 8.1
March 17, 1999
Eclipse Surgical Technologies, Inc.
1049 Kiel Court
Sunnyvale, California 94089
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Form S-4
Registration Statements filed with the Securities and Exchange Commission filed
on March 17, 1999 (the "Registration Statement"), pursuant to the Agreement and
Plan of Reorganization (the "Agreement") dated as of October 21, 1998 by and
among Eclipse Surgical Technologies, Inc., a California corporation ("Parent"),
RW Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary
of Parent ("Merger Sub"), and CardioGenesis Corporation, a Delaware corporation
("Company").
Except as otherwise provided, capitalized terms used but not defined
herein shall have the meanings set forth in the Reorganization Agreement.
We have acted as counsel to Parent and Merger Sub in connection with
the Merger. As such, and for the purpose of rendering this opinion, we have
examined, and are relying upon (without any independent investigation or review
thereof) the truth and accuracy, at all relevant times, of the statements,
covenants, representations and warranties contained in the following documents
(including all exhibits and schedules attached thereto):
1. The Reorganization Agreement;
2. The Form S-4 Registration Statement filed with the Securities
and Exchange Commission on February 9, 1999 (which contains a
Proxy Statement);
3. The Form S-4 Registration Statement filed with the Securities
and Exchange Commission on March 17, 1999;
4. Those certain tax representation letters delivered to us by
Parent, Merger Sub and Company containing certain
representations of Parent, Merger Sub and Company (the "Tax
Representation Letters"); and
5. Such other instruments and documents related to the formation,
organization and operation of Parent, Merger Sub and Company
and related to the consummation
<PAGE> 2
Eclipse Surgical Technologies, Inc.
March 17, 1999
Page 2
of the Merger and the other transactions contemplated by the
Reorganization Agreement as we have deemed necessary or
appropriate.
In connection with rendering this opinion, we have assumed (without any
independent investigation or review thereof) that:
a. Original documents submitted to us (including signatures
thereto) are authentic, documents submitted to us as copies
conform to the original documents, and that all such documents
have been (or will be by the Effective Time) duly and validly
executed and delivered where due execution and delivery are a
prerequisite to the effectiveness thereof;
b. All representations, warranties and statements made or agreed
to by Parent, Merger Sub and Company, their managements,
employees, officers, directors and shareholders in connection
with the Merger, including, but not limited to, those set
forth in the Reorganization Agreement (including the exhibits
thereto) and the Tax Representation Letters are true and
accurate at all relevant times;
c. All covenants contained in the Reorganization Agreement
(including exhibits thereto) and the Tax Representation
Letters are performed without waiver or breach of any material
provision thereof;
d. The Merger will be reported by Parent, Merger Sub and Company
on their respective federal income tax returns in a manner
consistent with the opinion set forth below; and
e. Any representation or statement made "to the best of
knowledge" or similarly qualified is correct without such
qualification.
Based on our examination of the foregoing items and subject to the
limitations, qualifications, assumptions and caveats set forth herein, we are of
the opinion that, if the Merger is consummated in accordance with the
Reorganization Agreement (and without any waiver, breach or amendment of any of
the provisions thereof), then for federal income tax purposes, the Merger will
be a "reorganization" within the meaning of Section 368(a) of the Internal
Revenue Code of 1986, as amended.
In addition, we are of the opinion that the disclosure entitled
"Material Federal Income Tax Consequences" in the Proxy Statement constituting a
part of the Registration Statement filed
<PAGE> 3
Eclipse Surgical Technologies, Inc.
March 17, 1999
Page 3
on February 9, 1999 (and incorporated by reference in the Registration
Statement), insofar as it relates to statements of law and legal conclusions, is
correct in all material respects.
This opinion does not address the various state, local or foreign tax
consequences that may result from the Merger or the other transactions
contemplated by the Reorganization Agreement. In addition, no opinion is
expressed as to any tax consequence of the Merger or the other transactions
contemplated by the Reorganization Agreement except as specifically set forth
herein, and this opinion may not be relied upon except with respect to the
consequences specifically discussed herein. No opinion is expressed as to the
federal income tax treatment that may be relevant to a particular investor in
light of personal circumstances or to certain types of investors subject to
special treatment under the federal income tax laws (for example, life insurance
companies, dealers in securities, taxpayers subject to the alternative minimum
tax banks, tax-exempt organizations, non-United States persons, and stockholders
who acquired their shares of Company stock pursuant to the exercise of options
or otherwise as compensation).
No opinion is expressed as to any other transaction whatsoever,
including the Merger, if all of the transactions described in the Reorganization
Agreement are not consummated in accordance with the terms of the Reorganization
Agreement and without waiver of any material provision thereof. To the extent
that any of the representations, warranties, covenants, statements and
assumptions material to our opinion and upon which we have relied are not
accurate and complete in all material respects at all relevant times, our
opinion would be adversely affected and should not be relied upon.
This opinion only represents our best judgment as to the federal income
tax consequences of the Merger and is not binding on the Internal Revenue
Service or any court of law, tribunal, administrative agency or other
governmental body. The conclusions are based on the Internal Revenue Code of
1986, as amended, existing judicial decisions, administrative regulations and
published rulings. No assurance can be given that future legislative, judicial
or administrative changes or interpretations would not adversely affect the
accuracy of the conclusions stated herein. Nevertheless, by rendering this
opinion, we undertake no responsibility to advise you of any new developments in
the application or interpretation of the federal income tax laws.
<PAGE> 4
Eclipse Surgical Technologies, Inc.
March 17, 1999
Page 4
This opinion is being delivered for the purposes of being included as
an exhibit to the March 17, 1999 Registration Statement. We hereby consent to
the use of our name in the March 17, 1999 and February 9, 1999 Registration
Statements and to the filing of this opinion as an exhibit to the March 17, 1999
Registration Statement.
Very truly yours,
/s/ WILSON SONSINI GOODRICH & ROSATI, P.C.
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
<PAGE> 1
EXHIBIT 8.2
[HELLER EHRMAN WHITE & MCAULIFFE LETTERHEAD]
March 16, 1999
CardioGenesis Corporation
540 Oakmead Parkway
Sunnyvale, California 94086
Ladies and Gentlemen:
This opinion is being delivered to you in connection with the Form S-4
Registration Statement to be filed by Eclipse Surgical Technologies, Inc.
("Eclipse") with the Securities and Exchange Commission (the "Registration
Statement") pursuant to the Agreement and Plan of Reorganization dated as of
October 21, 1998 by and among Eclipse, RW Acquisition Corporation, a wholly
owned subsidiary of Eclipse ("Merger Sub"), and CardioGenesis Corporation
("CardioGenesis"). The Form S-4 Registration Statement of Eclipse (Registration
Statement No. 333-72063) filed with the Securities and Exchange Commission on
February 9, 1999 (the "Prior Registration Statement") included as Exhibit 8.2
our opinion dated February 9, 1999 ("Tax Opinion") regarding certain federal
income tax consequences of the proposed merger of Merger Sub with and into
CardioGenesis.
Our Tax Opinion applies to shares covered by the Registration Statement
to the same extent, with the same effect, and subject to the same assumptions,
qualifications, and exceptions, as if such shares were included within the Prior
Registration Statement.
We consent to the incorporation by reference of our firm in the
Registration Statement and to the reproduction and filing of this opinion as an
exhibit to the Registration Statement. In giving this consent, however, we do
not admit that we are in
<PAGE> 2
CardioGenesis Corporation
March 16, 1999
Page 2
the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended.
Very truly yours,
/s/ Heller Ehrman White & McAuliffe
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-4 (No. 333-72063) of
CardioGenesis Corporation and Eclipse Surgical Technologies, Inc., incorporated
by reference in this Registration Statement on Form S-4, of our report dated
January 30, 1998, which appears in Eclipse Surgical Technologies, Inc.'s 1997
Annual Report on Form 10-K for the year ended December 31, 1997. We also consent
to the reference to us under the heading of "Experts" in such Prospectus.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
San Jose, California
March 16, 1999
<PAGE> 1
EXHIBIT 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the Prospectus constituting part of the
Registration Statement on Form S-4 (No. 333-72063) of CardioGenesis Corporation
and Eclipse Surgical Technologies, Inc., incorporated by reference in this
Registration Statement on Form S-4, of our report dated January 30, 1998
relating to the financial statements of CardioGenesis Corporation, which appears
in such Prospectus. We also consent to the reference to us under the heading of
"Experts" in such Prospectus.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
San Jose, California
March 16, 1999
<PAGE> 1
EXHIBIT 23.5
CONSENT OF PAINEWEBBER INCORPORATED
PaineWebber Incorporated ("PaineWebber") hereby consents to the
incorporation by reference in this Registration Statement of its opinion, dated
October 21, 1998, contained in the Joint Proxy Statement/Prospectus constituting
a part of the Registration Statement on Form S-4, filed by Eclipse Surgical
Technologies, Inc. on February 9, 1999 (Registration No. 333-72063), which is
incorporated by reference herein in its entirety, and to the references made to
PaineWebber in the "Summary -- Opinions of PaineWebber and Bear Stearns,"
"Approval of the Merger and Related Transactions: Material Contacts and Board
Deliberations," and "Approval of the Merger and Related Transactions:
PaineWebber Opinion" sections of such Joint Proxy Statement/ Prospectus. In
giving such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Dated: March 16, 1999
Very truly yours,
PAINEWEBBER INCORPORATED
By: PAINEWEBBER INCORPORATED
<PAGE> 1
EXHIBIT 23.6
CONSENT OF BEAR, STEARNS & CO. INC.
Bear, Stearns & Co. Inc. ("Bear Stearns") hereby consents to the
incorporation by reference in this Registration Statement of its opinion, dated
October 21, 1998, contained in the Joint Proxy Statement/Prospectus constituting
a part of the Registration Statement on Form S-4, filed by Eclipse Surgical
Technologies, Inc. on February 9, 1999 (Registration No. 333-72063), which is
incorporated by reference herein in its entirety, and to the references made to
Bear Stearns in the "Summary -- Opinions of PaineWebber and Bear Stearns,"
"Approval of the Merger and Related Transactions -- CardioGenesis' Additional
Reasons For the Merger," "-- Material Contacts and Board Deliberations," and "--
Bear Stearns Opinion" sections of such Joint Proxy Statement/ Prospectus. In
giving such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933,
or the rules and regulations of the Securities and Exchange Commission
promulgated thereunder.
Dated: March 16, 1999
BEAR, STEARNS & CO. INC.
By: /s/ Courtney H. Houseworth
------------------------------------
Name: Courtney H. Houseworth
----------------------------------
Title: Managing Director
---------------------------------
