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
EVEREST MEDICAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1454928
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
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13755 First Avenue North, Minneapolis, MN 55441-5444
(Address of Principal Executive Office and Zip Code)
1986 Incentive Stock Option Plan
(Full Title of the Plan)
John L. Shannon, Jr.
Everest Medical Corporation
13755 First Avenue North
Minneapolis, MN 55441-5444
(612) 473-6262
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Thomas R. King
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
<TABLE>
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Options to Purchase
Common Stock under
the 1986 Incentive Indefinite $0.00 $ 0.00 $ 0.00
Stock Option Plan
Common Stock 112,700 shares $1.56 $175,812 $ 53.28
issuable upon 200,000 shares $1.75 350,000 106.06
exercise of options 42,500 shares $1.87 79,475 24.08
granted under the 4,000 shares $1.92 7,680 2.33
1986 Stock Option 7,000 shares $2.00 14,000 4.24
Plan 5,000 shares $2.31 11,550 3.50
1,000 shares $2.53 2,530 0.77
15,000 shares $3.12 46,800 14.18
1,500 shares $3.15 4,725 1.43
TOTAL: $209.87
================================================================================================================================
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(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to anti-dilution provisions of the plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934,
or either (I) the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933 that contains audited
financial statements for the Registrant's latest fiscal year
for which such statements have been filed or (II) the
Registrant's effective registration statement on Form 10 or
10-SB filed under the Securities Exchange Act of 1934
containing audited financial statements for the Registrant's
latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the Registrant document referred to in
(a) above;
(c) If the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934, the
description of such class of securities contained in a
registration statement filed under such Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the 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 such 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.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Minnesota corporate law, a corporation shall, unless prohibited
or limited by its Articles of Incorporation or Bylaws, indemnify its directors,
officers, employees and agents against judgments, penalties, fines, settlements,
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expenses and disbursements incurred by such person who was, or is threatened to
be, made a party to a proceeding by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation if generally, with
respect to the acts or omissions of the person complained of in the proceeding,
the person: (i) has not been indemnified by another organization with respect to
the same acts or omissions; (ii) acted in good faith, (iii) received no improper
personal benefit; (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (v) reasonably believed the
conduct was in the best interests of the corporation or, in certain
circumstances, reasonably believed that the conduct was not opposed to the best
interests of the corporation. Minnesota corporate law also provides that a
corporation may purchase and maintain insurance on behalf of any indemnified
party against any liability asserted against such person, whether or not the
corporation would have been required to indemnify the person against liability
under the provisions of Minnesota corporate law.
The Company's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Company will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Company or its shareholders, (ii)
acts or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) dividends or other distributions of corporate
assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws or (v) any
transaction from which the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Fredrikson & Byron, P.A. relating to
the legality of securities under the 1986 Incentive Stock
Option Plan.
23.1 Consent of Fredrikson & Byron, P.A. -- included in their
opinion filed as Exhibit 5.
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney from certain directors.
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:
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(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, represents 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 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 purposes 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.
(b) The undersigned Registrant hereby 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 (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.
(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
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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 final
adjudication of such issue.
SIGNATURES
The Registrant. 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 Minneapolis and State of Minnesota, on the 5th
day of February, 1997.
EVEREST MEDICAL CORPORATION
(the "Registrant")
By /s/ John L. Shannon, Jr.
John L. Shannon, Jr.
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints John L. Shannon, Jr.
and Thomas F. Murphy his true and lawful attorney-in-fact and agent, each acting
alone, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement of Everest Medical Corporation relating to the Company's
1986 Incentive Stock Option Plan and any or all amendments or post-effective
amendments to the Form S-8 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, each acting alone, 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 the undersigned might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, each acting alone, or their substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
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Signature Title Date
/s/ John L. Shannon, Jr. President, Chief Executive February 5, 1997
John L. Shannon, Jr. Officer and Director
(principal executive officer)
/s/ Thomas F. Murphy Chief Financial Officer February 5, 1997
Thomas F. Murphy (principal financial and
accounting officer)
/s/ David D. Koentopf Director and Chairman of February 5, 1997
David D. Koentopf the Board
/s/ Donald R. Brattain Director February 5, 1997
Donald R. Brattain
/s/ Richard J. Migliori Director February 5, 1997
Richard J. Migliori, M.D.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
EVEREST MEDICAL CORPORATION
Form S-8 Registration Statement
E X H I B I T I N D E X
Exhibit
Number Exhibit Description
5 Opinion and Consent of Fredrikson & Byron, P.A. relating to the
legality of securities under the 1986 Incentive Stock Option Plan
23.1 Consent of Fredrikson & Byron, P.A. (See Exhibit 5)
23.2 Consent of Ernst & Young LLP
24 Power of attorney from certain directors
EXHIBIT 5
February 5, 1997
Everest Medical Corporation
13755 First Avenue North
Minneapolis, MN 55441-5444
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
We are acting as corporate counsel to Everest Medical Corporation (the
"Company") in connection with the original registration by the Company on Form
S-8 (the "Registration Statement") under the Securities Act of 1933, as amended
(the "Act") of options and 388,700 shares (the "Shares") of Common Stock
issuable pursuant to the Company's 1986 Incentive Stock Option Plan (the
"Plan").
In acting as such counsel and for the purpose of rendering this
opinion, we have reviewed copies of the following, as presented to us by the
Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of
Directors and shareholders of the Company pertaining to the
adoption and approval of the Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
1. The Shares are validly authorized by the Company's Articles of
Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by
the Company of the consideration for the Shares pursuant to
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By /s/ Thomas R. King
Thomas R. King
Fredrikson & Byron, P.A.
1100 International Centre
900 Second Avenue South
Minneapolis, MN 55402
Telephone (612) 347-7000
Fax: (612) 347-7077
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Everest Medical Corporation 1986 incentive Stock Option
Plan of our report dated January 12, 1996, with respect to the financial
statements of Everest Medical Corporation included in its Annual Report (Form
10-KSB) for the year ended December 31, 1995, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Minneapolis, Minnesota
February 5, 1997
