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As filed with the Securities and Exchange Commission on March 19, 1999
Registration No. 333-__________
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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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ECLIPSE SURGICAL TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
CALIFORNIA 77-0223740
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1049 KIEL COURT
SUNNYVALE, CALIFORNIA 94089
(408) 548-2100
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
CARDIOGENESIS 1993 EQUITY INCENTIVE PLAN
CARDIOGENESIS 1996 EQUITY INCENTIVE PLAN
CARDIOGENESIS 1996 DIRECTORS STOCK OPTION PLAN
CARDIOGENESIS 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
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RICHARD P. POWERS
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
ECLIPSE SURGICAL TECHNOLOGIES, INC.
1049 KIEL COURT
SUNNYVALE, CALIFORNIA 94089
(408) 548-2100
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
---------------------------
Copy to:
JEFFREY D. SAPER, ESQ.
J. ROBERT SUFFOLETTA, JR., ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304-1050
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED(1) PER SHARE PRICE FEE
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value
- - To be issued upon exercise of options outstanding
under the CardioGenesis 1993 Equity Incentive Plan 588,266 shares $ 0.66(2) $ 388,138 $ 108.00
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value
- - To be issued upon exercise of options outstanding
under the CardioGenesis 1996 Equity Incentive Plan 908,374 shares $ 7.62(2) $ 6,926,261 $ 1,926.00
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value
- - To be issued upon exercise of options outstanding
under the CardioGenesis 1996 Directors Stock
Option Plan 63,960 shares $ 9.22(2) $ 589,635 $ 164.00
- ----------------------------------------------------------------------------------------------------------------------------------
Common Stock, no par value
- - To be issued upon exercise of options outstanding
under the CardioGenesis 1996 Employee Stock
Purchase Plan 178,400 shares $10.09(3) $ 1,800,725 $ 501.00
- ----------------------------------------------------------------------------------------------------------------------------------
Total 1,739,000 shares $ 9,704,759 $ 2,699.00
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</TABLE>
(1) This Registration Statement covers an aggregate of 1,739,000 shares of
Common Stock which may be issued pursuant to the CardioGenesis 1993
Equity Incentive Plan, the CardioGenesis 1996 Equity Incentive Plan, the
CardioGenesis 1996 Directors Stock Option Plan, and the CardioGenesis
1996 Employee Stock Purchase Plan. The outstanding options under these
plans were assumed by the Registrant in connection with the merger of a
wholly-owned subsidiary of the Registrant with and into CardioGenesis
Corporation which occurred on March 17, 1999.
(2) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the registration
fee on the basis of the weighted average exercise price of the
outstanding options under such plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act of
1933, as amended, solely for the purpose of calculating the registration
fee. The proposed maximum offering price per share with respect to the
178,400 shares being registered under the 1996 Employee Stock Purchase
Plan was determined to be 85% of the average of the high and low price
reported in the Nasdaq National Market on March 15, 1999.
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ECLIPSE SURGICAL TECHNOLOGIES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents have been filed by Eclipse Surgical Technologies,
Inc. (the "Registrant") with the Securities and Exchange Commission (the
"Commission") and are incorporated herein by reference:
(a) Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(b) Registrant's Quarterly Reports on Form 10-Q for the quarters
ended September 30, 1998, June 30, 1998, and March 30, 1998;
(c) Registrant's Definitive Proxy Materials filed with the
Commission on March 25, 1998;
(d) Registrant's Current Reports on Form 8-K filed with the
Commission on November 3, 1998 and December 11, 1998;
(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 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 hereunder
have been sold or which deregisters all securities then remaining unsold under
this registration statement, shall be deemed to be incorporated by reference
herein 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.
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
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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. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
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<S> <C>
4.1 CardioGenesis 1993 Equity Incentive Plan (Filed as an exhibit to
CardioGenesis Corporation's Form SB-2, file number 333-3752-LA,
and incorporated herein by reference).
4.2 CardioGenesis 1996 Equity Incentive Plan (Filed as an exhibit to
CardioGenesis Corporation's Form S-8, file number 333-35095,
dated September 8, 1997, and incorporated herein by reference).
4.3 CardioGenesis 1996 Directors Stock Option Plan (Filed as an
exhibit to CardioGenesis Corporation's Form SB-2, file number
333-3752-LA, and incorporated herein by reference).
4.4 CardioGenesis 1996 Employee Stock Purchase Plan (Filed as an
exhibit to CardioGenesis Corporation's Form SB-2, file number
333-3752-LA, and incorporated herein by reference).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Power of Attorney (included on the signature page to the
Registration Statement; see pages II-5 and II-6).
</TABLE>
ITEM 9. UNDERTAKINGS.
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
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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, 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.
(4) 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 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to 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.
(5) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities
Act of 1933 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, as amended,
the Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale,
California, on March 19, 1999.
ECLIPSE SURGICAL TECHNOLOGIES, INC.
By: /s/ Allen W. Hill
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Allen W. Hill
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL THESE PERSONS BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Allen W. Hill and Richard P.
Powers 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 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
19, 1999 IN THE CAPACITIES INDICATED:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY
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<S> <C>
/s/ Allen W. Hill President and Chief Executive Officer
- ------------------------------------ (Principal Executive Officer)
Allen W. Hill
/s/ Richard P. Powers Chief Financial Officer (Principal
- ------------------------------------ Accounting and Financial Officer)
Richard P. Powers
/s/ Douglas Murphy-Chutorian, M.D. Chairman of the Board of Directors
- ------------------------------------
Douglas Murphy-Chutorian, M.D.
/s/ Robert L. Mortensen Director
- -------------------------------------
Robert L. Mortensen
/s/ Iain M. Watson Director
- -------------------------------------
Iain M. Watson
</TABLE>
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<TABLE>
<S> <C>
/s/ Alan L. Kaganov
- ------------------------------------- Director
Alan L. Kaganov
/s/ Jack M. Gill
- ------------------------------------- Director
Jack M. Gill
/s/ Robert C. Strauss
- ------------------------------------- Director
Robert C. Strauss
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------ -----------------------
<S> <C>
4.1 CardioGenesis 1993 Equity Incentive Plan (Filed as an exhibit to
CardioGenesis Corporation's Form SB-2, file number 333-3752-LA,
and incorporated herein by reference).
4.2 CardioGenesis 1996 Equity Incentive Plan (Filed as an exhibit to
CardioGenesis Corporation's Form S-8, file number 333-35095,
dated September 8, 1997, and incorporated herein by reference).
4.3 CardioGenesis 1996 Directors Stock Option Plan (Filed as an
exhibit to CardioGenesis Corporation's Form SB-2, file number
333-3752-LA, and incorporated herein by reference).
4.4 CardioGenesis 1996 Employee Stock Purchase Plan (Filed as an
exhibit to CardioGenesis Corporation's Form SB-2, file number
333-3752-LA, and incorporated herein by reference).
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
23.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants.
24.1 Power of Attorney (included on the signature page to the
Registration Statement; see pages II-5 and II-6).
</TABLE>
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EXHIBIT 5.1
March 19, 1999
Eclipse Surgical Technologies, Inc.
1049 Kiel Court
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 the date hereof in
connection with the registration under the Securities Act of 1933, as amended,
of an aggregate of 1,739,000 shares of your Common Stock, no par value (the
"Shares"), which may be issued pursuant to the CardioGenesis Corporation 1993
Equity Incentive Plan, the CardioGenesis 1996 Equity Incentive Plan, the
CardioGenesis 1996 Directors Stock Option Plan, and the CardioGenesis 1996
Employee Stock Purchase Plan (collectively referred to hereinafter as the
"Plans"). The outstanding options under the Plans were assumed by you in
connection with the merger of your wholly-owned subsidiary, RW Acquisition
Corporation, with and into CardioGenesis Corporation. 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 pursuant to the
Plans.
Based on the foregoing, we are of the opinion that the Shares, when
issued in the manner described in the Plans and pursuant to the agreements which
accompany each grant under the Plans, 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, and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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EXHIBIT 23.2
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 30, 1998, which
appears in Eclipse Surgical Technologies, Inc.'s 1997 Annual Report on Form 10-K
for the year ended December 31, 1997.
PricewaterhouseCoopers LLP
San Jose, California
March 18, 1999
