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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1997
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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INCONTROL, INC.
(Exact name of Registrant as specified in its charter)
DELAWARE 91-1501619
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6675 - 185TH AVENUE N.E.
REDMOND, WASHINGTON 98052
(Address of Principal Executive Offices)(Zip Code)
INCONTROL, INC.
RESTATED 1990 STOCK OPTION PLAN
(Full title of the plan)
KURT C. WHEELER
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
INCONTROL, INC.
6675 - 185TH AVENUE N.E.
REDMOND, WASHINGTON 98052
(206) 861-9800
(Name, address and telephone number of agent for service)
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COPY TO:
STEPHEN M. GRAHAM
PERKINS COIE
1201 THIRD AVENUE, 40TH FLOOR
SEATTLE, WASHINGTON 98101-3099
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED SHARE(1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share.............. 1,000,000(2) $9.91 $9,910,000 $3003.00
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</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the registration fee. The price per share is estimated to be $9.91,
based on the average of the high and low sale price for the Common Stock
on July 29, 1997, as reported by the Nasdaq National Market.
(2) The number of shares registered includes such indeterminate number of
additional shares which may be necessary to adjust the number of shares
reserved for issuance pursuant to the Restated 1990 Stock Option Plan, as
the case may be, as the result of any future stock split, stock dividend
or similar adjustment of the outstanding Common Stock. This number also
includes associated preferred share purchase rights. Prior to the
occurrence of certain events, such rights will not be evidenced or traded
separately from the Common Stock.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year
ended December 31, 1996;
(b) All other reports filed by the Registrant pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), since the end of the year covered by the Annual Report referred
to in (a) above;
(c) The description of the Registrant's Common Stock contained
in the Registration Statement on Form 8-A filed with the Securities and Exchange
Commission (the "Commission") on July 19, 1994, including any amendment or
report filed for the purpose of updating such description; and
(d) The description of the Registrant's preferred share
purchase rights contained in the Registration Statement on Form 8-A filed with
the Commission on March 1, 1996, including any amendment or report filed for the
purpose of updating such description.
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
hereby have been sold or which deregisters all securities covered hereby then
remaining unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides that a corporation may indemnify directors and officers as well as
other employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation, a
"derivative action") if they acted in good faith and in a manner they 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 their conduct was unlawful. A similar standard is applicable in the case
of derivative actions, except that (i) indemnification only extends to expenses
(including attorneys' fees) incurred in connection with the defense or
settlement of such actions and (ii) the statute requires court approval before
there can be any indemnification where the person seeking indemnification has
been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
charter, bylaws, disinterested director vote, stockholder vote or otherwise.
Section 10 of the Registrant's Amended and Restated Bylaws (the
"Bylaws") requires indemnification to the fullest extent permitted under
Delaware law as from time to time in effect. Subject to any restrictions imposed
by Delaware law, the Bylaws provide an unconditional right to indemnification
for all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement) actually
and reasonably incurred or suffered by any person in connection with any actual
or threatened action, suit or proceeding, whether civil, criminal,
administrative or investigative by reason of the fact that such person is or was
serving as a director or officer of the Registrant or that, being or having been
a director or officer or an employee of the Registrant, such person is or was
serving at the request of the Registrant as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, including an employee benefit plan. The Bylaws also provide that the
Registrant may, by action of its Board of Directors, provide indemnification to
its employees and agents with the same scope and effect as the foregoing
indemnification of directors and officers.
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Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director, except for liability for (i) any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) payments of unlawful dividends or unlawful
stock repurchases or redemptions, or (iv) any transaction from which the
director derived an improper personal benefit.
Article 10 of the Registrant's Restated Certificate of Incorporation
provides that, to the fullest extent that the DGCL, as it now exists or may
hereafter be amended, permits the limitation or elimination of the liability of
directors, a director of the Registrant shall not be liable to the Registrant or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Any amendment to or repeal of such Article 10 shall not adversely
affect any right or protection of a director of the Registrant for or with
respect to any acts or omissions of such director occurring prior to such
amendment or repeal.
The Registrant has entered into an Indemnification Agreement with each
of its executive officers and directors in which the Registrant agrees to hold
harmless and indemnify the officer or director to the fullest extent permitted
by Delaware law. Under these Indemnification Agreements, the officer or director
is not indemnified for any action, suit, claim or proceeding instituted by or at
the direction of the officer or director unless such action, suit, claim or
proceeding is or was authorized by the Registrant's Board of Directors or unless
the action is to enforce the provisions of the Indemnification Agreement.
No indemnity pursuant to the Indemnification Agreements shall be
provided by the Registrant on account of any suit in which a final unappealable
judgment is rendered against an executive officer or director for an accounting
of profits made from the purchase or sale of the Registrant's securities by the
executive officer or director in violation of the provisions of Section 16(b) of
the Exchange Act and amendments thereto, or for damages that have been paid
directly to the executive officer or director by an insurance carrier under a
directors' and officers' liability insurance policy maintained by the
Registrant.
ITEM 8. EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
5.1 Opinion of Perkins Coie regarding legality of the Common
Stock being registered hereby
23.1 Consent of Ernst & Young LLP, Independent Auditors (see
page II-6)
23.2 Consent of Perkins Coie (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 InControl, Inc. Restated 1990 Stock Option Plan
(Exhibit 10.4)*
</TABLE>
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* Incorporated herein by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, File No. 000-24540, as the indicated
Exhibit Number.
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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:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this 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 this Registration
Statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in this Registration Statement or
any material change to such information in this Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above 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 Exchange Act that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under 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 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefits plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in this 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 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, as amended,
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 Redmond, State of Washington, on the 29th day of
July, 1997.
INCONTROL, INC.
By /s/ KURT C. WHEELER
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Kurt C. Wheeler, Chairman, President
and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below authorizes and appoints Kurt
C. Wheeler and Donald F. Seaton III, or either of them, his attorneys-in-fact,
with the power of substitution, for him in any and all capacities, to sign any
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, hereby ratifying and confirming all that said
attorneys-in-fact, or their substitute or substitutes, may 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 below by the following persons on
the 29th day of July, 1997 in the capacities indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE
<S> <C>
/s/ KURT C. WHEELER
- ----------------------------------- Chairman, President and Chief Executive Officer
Kurt C. Wheeler (Principal Executive Officer)
/s/ DONALD F. SEATON III
- ----------------------------------- Vice President, Finance, Chief Financial Officer and
Donald F. Seaton III Secretary (Principal Financial and Accounting Officer)
/s/ ALAN D. FRAZIER
- ----------------------------------- Director
Alan D. Frazier
/s/ DONALD C. HARRISON
- ----------------------------------- Director
Donald C. Harrison
/s/ MARK B. KNUDSON
- ----------------------------------- Director
Mark B. Knudson
/s/ MICHAEL J. LEVINTHAL
- ----------------------------------- Director
Michael J. Levinthal
</TABLE>
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CONSENT OF ERNST & YOUNG, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement on Form S-8 pertaining to the InControl, Inc. Restated 1990 Stock
Option Plan of our report dated January 29, 1997, with respect to the
consolidated financial statements of InControl, Inc. included in its Annual
Report on Form 10-K for the year ended December 31, 1996, filed with the
Securities and Exchange Commission.
Ernst & Young LLP
/s/ Ernst & Young LLP
Seattle, Washington
July 28, 1997
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
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<S> <C>
5.1 Opinion of Perkins Coie regarding legality of the Common Stock
being registered hereby
23.1 Consent of Ernst & Young LLP, Independent Auditors
(see page II-6)
23.2 Consent of Perkins Coie (included in Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 InControl, Inc. Restated 1990 Stock Option Plan (Exhibit 10.4)*
</TABLE>
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* Incorporated herein by reference to the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, File No. 000-24540, as the indicated
Exhibit Number.
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EXHIBIT 5.1
[PERKINS COIE LETTERHEAD]
July 30, 1997
InControl, Inc.
6675 - 185th Ave. NE
Redmond, WA 98052
RE: REGISTRATION STATEMENT ON FORM S-8
Gentlemen and Ladies:
We have acted as counsel to you in connection with the preparation of a
Registration Statement on Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "Act"), which you are filing with the
Securities and Exchange Commission with respect to 1,000,000 shares of Common
Stock, $.01 par value (the "Shares"), which may be issued upon the exercise of
stock options granted or to be granted pursuant to the InControl, Inc. Restated
1990 Stock Option Plan (the "Plan"). We have examined the Registration Statement
and such documents and records of the Company and other documents as we have
deemed necessary for the purpose of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares that may be issued upon the exercise of stock options granted or to be
granted pursuant to the Plan have been duly authorized and that, upon the due
execution by the Company and the registration by its registrars of the Shares
and the sale thereof by the Company in accordance with the terms of the Plan,
and the receipt of the consideration therefor in accordance with 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. In giving such consent, we do not admit that we are in
the category of persons whose consent is required under Section 7 of the Act.
Very truly yours,
/s/ Perkins Coie
