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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 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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LASER POWER CORPORATION
(Exact name of Registrant as specified in its charter)
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DELAWARE 95-3423358
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
12777 HIGH BLUFF DRIVE
SAN DIEGO, CALIFORNIA 92130
(619) 755-0700
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
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1981 STOCK OPTION PLAN
1993 STOCK OPTION PLAN
WARRANTS TO PURCHASE COMMON STOCK
OPTIONS TO PURCHASE COMMON STOCK
1997 EQUITY INCENTIVE PLAN
EMPLOYEE STOCK PURCHASE PLAN
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GLENN H. SHERMAN
CHIEF EXECUTIVE OFFICER AND CHAIRMAN OF THE BOARD OF DIRECTORS
LASER POWER CORPORATION
12777 HIGH BLUFF DRIVE
SAN DIEGO, CALIFORNIA 92130
(619) 755-0700
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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Copies to:
D. BRADLEY PECK
EDWARD C.Y. YIP
ALEXANDER A. FITZPATRICK
COOLEY GODWARD LLP
4365 EXECUTIVE DRIVE, SUITE 1100
SAN DIEGO, CA 92121
(619) 550-6000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING AGGREGATE AMOUNT OF
TO BE REGISTERED BE PRICE OFFERING REGISTRATION
REGISTERED PER SHARE(1) PRICE(1) FEE
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.001 par value 2,958,279 $3.00-$6.00 $13,590,109 $4,118.21
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</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457. The price per share and aggregate
offering price are based upon (a) the actual exercise price for shares subject
to outstanding stock options previously granted under Registrant's 1981 Stock
Option Plan, as amended (the "1981 Plan"), 1993 Stock Option Plan (the "1993
Plan") and 1997 Equity Incentive Plan (the "1997 Plan"), Warrants to Purchase
Common Stock previously granted by Registrant as compensation for services
rendered as a director of the Registrant, Options previously granted by
Registrant as compensation for consulting services rendered to the Registrant
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and (b) for shares issuable under the 1997 Plan and shares issuable under the
Employee Stock Purchase Plan, calculated on the basis of the average of the high
and low sales price of the Registrant's Common Stock on June 23, 1996 as
reported on the Nasdaq National Market. The following chart shows the
calculation of the registration fee:
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------
Aggregate
Type of Shares Number of Shares Offering Price Offering
Per Share Price
- ------------------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock issuable 404,324 $3.00 $1,212,972
pursuant to outstanding
options under the 1981 Stock
Option Plan
- ------------------------------------------------------------------------------
Common Stock issuable 3,333 $3.00 $9,999.00
pursuant to outstanding
options under the 1993 Stock
Option Plan
- ------------------------------------------------------------------------------
Common Stock issuable 542,633 $4.50 $2,441,848.50
pursuant to outstanding
options under the 1993 Stock
Option Plan
- ------------------------------------------------------------------------------
Common Stock issuable 66,666 $3.00 $199,998.00
pursuant to outstanding
options (granted outside any
plan)
- ------------------------------------------------------------------------------
Common Stock issuable 274,663 $4.50 $1,235,983.50
pursuant to outstanding
options (granted outside any
plan)
- ------------------------------------------------------------------------------
Common Stock issuable 383,330 $3.00 $1,149,990.00
pursuant to outstanding
warrants
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Common Stock issuable 33,330 $4.50 $149,985.00
pursuant to outstanding
warrants
- ------------------------------------------------------------------------------
Common Stock issuable 7,332 $6.00 $43,992.00
pursuant to outstanding
options under the 1997
Equity Incentive Plan
- ------------------------------------------------------------------------------
Common Stock issuable under 992,668 $5.75 $5,707,841.00
the 1997 Equity Incentive
Plan
- ------------------------------------------------------------------------------
Common Stock issuable under 250,000 $5.75 $1,437,500.00
the Employee Stock Purchase
Plan
- ------------------------------------------------------------------------------
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Prospectus contained in the Form SB-2 Registration Statement (No.
333-24421) filed by Laser Power Corporation (the "Registrant") with the
Securities and Exchange Commission (the "Commission") on April 2, 1997, as
amended through the date hereof (the "SB-2"), is hereby incorporated by
reference into this Registration Statement except as superseded or modified
herein. The Registrant has not filed, and has not been required to file, an
annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act") as of the date hereof. A description of
the Registrant's Common Stock which is contained in the Registration Statement
on Form 8-A filed by the Registrant with the Commission on May 29, 1997,
including any amendments or reports filed for the purpose of updating such
description, is hereby incorporated by reference into this Registration
Statement. All documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the time a post-effective amendment which
indicates that securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
into this Registration Statement and to be a part hereof from the date of filing
of such documents. Any statement contained in any document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as modified or superseded, to constitute a part of this
Registration Statement.
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 Section 145 of the General Corporation Law of Delaware (the
"Delaware Law"), the Registrant has broad powers to indemnify its Directors and
officers against liabilities they may incur in such capacities, including
liabilities under the Securities Act of 1933, as amended (the "Securities Act").
The Registrant's Amended and Restated Certificate of Incorporation and
Bylaws include provisions to (i) eliminate the personal liability of its
directors for monetary damages resulting from breaches of their fiduciary duty
to the extent permitted by Section 102(b)(7) of the General Corporation Law of
Delaware and (ii) require the Registrant to indemnify its Directors and officers
to the fullest extent permitted by Section 145 of the Delaware Law, including
circumstances in which indemnification is otherwise discretionary. Pursuant to
Section 145 of the Delaware Law, a corporation generally has the power to
indemnify its present and former directors, officers, employees and agents
against expenses incurred by them in connection with any suit to which they are
or are threatened to be made, a party by reason of their serving in such
positions so long as 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
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action, they had no reasonable cause to believe their conduct was unlawful. The
Registrant believes that these provisions are necessary to attract and retain
qualified persons as Directors and officers. These provisions do not eliminate
the Directors' duty of care, and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each Director will continue to be
subject to liability for breach of the Director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for acts or omissions that the
Director believes to be contrary to the best interests of the Registrant or its
stockholders, for any transaction from which the Director derived an improper
personal benefit, for acts or omissions involving a reckless disregard for the
Director's duty to the Registrant or its stockholders when the Director was
aware or should have been aware of a risk of serious injury to the Registrant or
its stockholders, for acts or omissions that constitute an unexcused pattern of
inattention that amounts to an abdication of the Director's duty to the
Registrant or its stockholders, for improper transactions between the Director
and the Registrant and for improper distributions to stockholders and loans to
Directors and officers. The provision also does not affect a Director's
responsibilities under any other law, such as the federal securities law or
state or federal environmental laws.
The Registrant has entered into indemnity agreements with each of its
Directors and executive officers that require the Registrant to indemnify such
persons against expenses, judgments, fines, settlements and other amounts
incurred (including expenses of a derivative action) in connection with any
proceeding, whether actual or threatened, to which any such person may be made a
party by reason of the fact that such person is or was a Director or an
executive officer of the Registrant or any of its affiliated enterprises,
provided that such person acted in good faith and in a manner such person
reasonably believed to be in or not opposed to the best interests of the
Registrant and, with respect to any criminal proceeding, had no reasonable cause
to believe his conduct was unlawful. The indemnification agreements also set
forth certain procedures that will apply in the event of a claim for
indemnification thereunder. The Registrant has entered into similar indemnity
agreements with certain of its key employees.
At present, there is no pending litigation or proceeding involving a
Director or officer of the Registrant as to which indemnification is being
sought nor is the Registrant aware of any threatened litigation that may result
in claims for indemnification by any officer or Director.
The Registrant has an insurance policy covering the officers and
Directors of the Registrant with respect to certain liabilities, including
liabilities arising under the Securities Act or otherwise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit No. Description
- ----------- -----------
<S> <C>
4.1 Registrant's Amended and Restated Certificate of Incorporation.(1)
4.2 Registrant's Amended and Restated Bylaws.(1)
4.3 Specimen Stock Certificate.(1)
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Cooley Godward LLP. Reference is made to Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page 5.
99.1 Registrant's Second Amended and Restated 1981 Stock Option Plan.(1)
99.2 Form of Incentive Stock Option Agreement under Registrant's 1981
Plan.(1)
99.3 Registrant's 1993 Stock Option Plan.(1)
99.4 Form of Incentive Stock Option Agreement under the 1993 Plan.(1)
99.5 Form of Nonstatutory Stock Option Agreement under the 1993 Plan.(1)
99.6 Registrant's 1997 Equity Incentive Plan.(1)
99.7 Form of Incentive Stock Option Agreement under the 1997 Plan.(1)
99.8 Form of Nonstatutory Stock Option Agreement under the 1997.(1)
99.9 Form of Warrant issued by Registrant in favor of certain directors
of Registrant.(1)
99.10 Registrant's Employee Stock Purchase Plan.(1)
</TABLE>
(1) Filed as an exhibit to the Registrant's Registration Statement on Form
SB-2 (No. 333-24421) and incorporated herein by reference.
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 previously
disclosed in this 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, 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;
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(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; and
(4) 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 of 1934, as amended (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.
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, 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 San Diego, State of California, on June 26,
1997.
LASER POWER CORPORATION
By /s/ Glenn H. Sherman
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Glenn H. Sherman, Ph.D.
Chairman of the Board and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Glenn H. Sherman and Paul P. Wickman, Jr. and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this 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, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or his substitutes or substitute, may lawfully 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 in the
capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ GLENN H. SHERMAN, Ph.D. Chairman of the Board and June 26, 1997
- ------------------------------ Chief Executive Officer
Glenn H. Sherman, Ph.D. (Principal Executive Officer)
/s/ PAUL P. WICKMAN, Jr. Senior Vice President, June 26, 1997
- ------------------------------ and Secretary
Paul P. Wickman, Jr. Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ DOUGLAS H. TANIMOTO, Ph.D. Director June 26, 1997
- ------------------------------
Douglas H. Tanimoto, Ph.D.
/s/ WILLIAM G. FREDRICK Director June 26, 1997
- ------------------------------
William G. Fredrick
/s/ ROBERT G. KLIMASEWSKI Director June 26, 1997
- ------------------------------
Robert G. Klimasewski
/s/ RICHARD C. LAIRD Director June 26, 1997
- ------------------------------
Richard C. Laird
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ KENNETH E. OLSON Director June 26, 1997
- ------------------------------
Kenneth E. Olson
/s/ JOHN C. STISKA Director June 26, 1997
- ------------------------------
John C. Stiska
</TABLE>
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EXHIBIT 5.1
[LETTERHEAD]
June 26, 1997
Laser Power Corporation
12777 High Bluff Drive
San Diego, CA 92130
Ladies and Gentlemen:
You have requested our opinion with respect to certain matters in connection
with the filing by Laser Power Corporation (the "Company") of a Registration
Statement on Form S-8 (the "Registration Statement") with the Securities and
Exchange Commission (the "Commission"), covering the registration of up to
2,958,279 shares of the Company's Common Stock, $.001 par value (the "Shares"),
for issuance upon exercise of (i) options granted under the Company's 1981 Stock
Option Plan, 1993 Stock Option Plan and 1997 Equity Incentive Plan
(collectively, the "Plans"), (ii) options available for grant under the
Company's 1997 Equity Incentive Plan, (iii) options granted outside the Plans
(the "Options"), and (iv) warrants granted outside the Plans (the "Warrants"),
as well as for shares issuable pursuant to the Company's Employee Stock Purchase
Plan.
In connection with this opinion, we have examined and relied upon the
Registration Statement, the Company's Amended and Restated Certificate of
Incorporation, Amended and Restated Bylaws and the originals or copies
certified to our satisfaction of such records, documents, certificates,
memoranda and other instruments as in our judgment are necessary or appropriate
to enable us to render the opinion expressed below. We have assumed the
genuineness and authenticity of all documents submitted to us as originals, the
conformity to originals of all documents submitted to us as copies thereof and
the due execution and delivery of all documents where due execution and
delivery are a prerequisite to the effectiveness thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion
that the Shares, when sold and issued in accordance with the Registration
Statement, the Plans, the Options, the Warrants and the Employee Stock Purchase
Plan as the case may be, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
COOLEY GODWARD LLP
By: /s/ D. BRADLEY PECK
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D. Bradley Peck
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EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1981 Stock Option Plan, the 1993 Stock Option
Plan, the 1997 Equity Incentive Plan, the Employee Stock Purchase Plan, the
Warrants to purchase common stock, and the Options to purchase common stock of
Laser Power Corporation of our report dated October 9, 1996, except for Note 5
("Changes in Capitalization"), as to which the date is March 25, 1997, with
respect to the consolidated financial statements of Laser Power Corporation for
the year ended August 31, 1996 in Post-Effective Amendment No. 1 to the
Registration Statement (Form SB-2, No. 333-24421) filed with the Securities and
Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
June 24, 1997
