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As filed with the Securities and Exchange Commission on May 1,1998
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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PLC SYSTEMS INC.
(Exact name of Registrant as specified in its charter)
BRITISH COLUMBIA, CANADA 04-3153858
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 FORGE PARK, FRANKLIN, MASSACHUSETTS 02038
(Address of Principal Executive Offices)
PLC SYSTEMS INC. 1995 STOCK OPTION PLAN
PLC SYSTEMS INC. 1997 EXECUTIVE STOCK OPTION PLAN
(Full title of the plans)
NEIL H. ARONSON, ESQUIRE
MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
ONE FINANCIAL CENTER, BOSTON, MASSACHUSETTS 02111
(617) 542-6000
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
=============================== ------------------------- --------------------- ------------------------- -----------------------
Proposed Proposed
maximum maximum
Title of Amount to be offering price aggregate Amount of
securities to be registered registered(1) per share(2) offering price(2) registration fee
=============================== ========================= ===================== ========================= =======================
<S> <C> <C> <C> <C>
Common Stock, no par value 1,350,000 $12.00 $16,200,000 $4,779.00
=============================== ========================= ===================== ========================= =======================
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(1) The number of shares of common stock, no par value per share ("Common
Stock"), stated above consists of the aggregate number of additional
shares not previously registered which may be sold upon the exercise of
options which have been granted and/or may hereafter be granted under
the PLC Systems Inc. 1995 Stock Option Plan (the "1995 Option Plan")
and the PLC Systems Inc. 1997 Executive Stock Option Plan (the "1997
Executive Option Plan"). The 1995 Option Plan and the 1997 Executive
Option Plan are collectively referred to as the "Plans". The maximum
number of shares which may be sold upon the exercise of such options
granted under the Plans are subject to adjustment in accordance with
certain anti-dilution and other provisions of said Plans. Accordingly,
pursuant to Rule 416 under the Securities Act of 1933, as amended (the
"Securities Act"), this Registration Statement covers, in addition to
the number of shares stated above, an indeterminate number of shares
which may be subject to grant or otherwise issuable after the operation
of any such anti-dilution and other provisions.
(2) This calculation is made solely for the purpose of determining the
registration fee pursuant to the provisions of Rule 457(h) under the
Securities Act as follows: (i) in the case of shares of Common Stock
which may be purchased upon exercise of outstanding options, the fee is
calculated on the basis of the price at which the options may be
exercised; and (ii) in the case of shares of Common Stock for which
options have not yet been granted and the option price of which is
therefore unknown, the fee is calculated on the basis of the average of
the high and low sale prices per share of the Common Stock on the
American Stock Exchange (the "AMEX") as of a date (April 29, 1997)
within 5 business days prior to filing this Registration Statement.
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EXPLANATORY NOTE
This Registration Statement relates, in part, to the registration of
700,000 additional shares of Common Stock authorized for issuance under the 1995
Option Plan and the registration of 650,000 shares of Common Stock authorized
for issuance under the 1997 Executive Option Plan. In accordance with the
instructional Note to Part I of Form S-8 as promulgated by the Securities and
Exchange Commission, the information specified by Part I of Form S-8 has been
omitted from this Registration Statement on Form S-8 for offers of Common Stock
pursuant to the 1995 Option Plan and the 1997 Executive Option Plan.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by the Registrant with the Commission are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
(b) The description of the Company's capital stock contained
in the Company's registration statement on Form 8-A under the 1934 Act
(File No. 1-11388), including amendments or reports filed for the
purpose of updating such description.
All reports and other documents filed by the Registrant after the date
hereof 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 hereby have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such reports
and documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the shares of Common Stock registered
under this Registration Statement has been passed upon for the Company by Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. of Boston, Massachusetts. A member
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. owns an aggregate of
3,162 shares of Common Stock of the Company.
Item 6. Indemnification of Directors and Officers.
The British Columbia Company Act (the "Company Act"), Section 152,
enables a corporation, with the approval of the Court, to indemnify a director
or a former director of the Company, or a director or a former director of a
corporation of which it is or was a shareholder, and his heirs and personal
representatives, against all costs, charges and expenses, including an amount
paid to settle an action or to satisfy a judgment, actually and reasonably
incurred by him, including an amount paid to settle an action or satisfy a
judgment in a civil, criminal or administrative action, or proceeding to which
he is made a party by reason of being or having been a director, including an
action brought by the Company or corporation if:
a. he acted honestly and in good faith with a view to the best
interest of the corporation of which he is or was a director;
and
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b. in the case of a criminal or administrative action or
proceeding, he had reasonable grounds for believing that his
conduct was lawful.
The Company Act also provides that a company may purchase and maintain
insurance for a director or former director of the Company, or a director or
former director of a corporation of which it is or was a shareholder, and his
heirs and personal representatives, against liability incurred by him as a
director or officer.
The Articles of the Company provide that the Company shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action or proceeding whether or not brought by
the Company or by a corporation or other legal entity or enterprise whether
civil, criminal or administrative, by reason of the fact that he is or was a
director, officer, employee or agent of the Company, or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise in accordance
with Section 152 of the Company Act.
The Articles of the Company also provide that the Company shall
indemnify any person other than a director with respect to any loss, damage,
costs or expenses whatsoever incurred by him while acting as an officer,
employee or agent for the Company unless such loss, damage, cost or expense
shall arise out of failure to comply with instructions, willful act, or default
or fraud by such person in any of which events the Company shall only indemnify
such persons if the directors in their absolute discretion so decide, or the
Company by ordinary resolutions shall so direct.
The indemnification provided by the Company's Articles shall continue
as to a person who has ceased to be a director, officer, employee or agent, and
shall benefit such person's heirs, executors and administrators.
The Articles of the Company authorize the directors from time to time
to cause the Company to give indemnities to any director, officer, employee,
agent or other person who has undertaken or is about to undertake any liability
on behalf of the Company or any corporation controlled by it.
The Articles of the Company further provide that, subject to the
Company Act no director, officer or employee for the time being of the Company
shall be liable for the acts, receipts, neglects or defaults of any other
director, officer, or employee or for joining in any receipt or act for
conformity, or for any loss, damages or expense happening to the Company through
insufficiency or deficiency of title to any property acquired by order of the
board for the Company, or for the insufficiency or deficiency of any security in
or upon which any monies of or belonging to the Company shall be invested or for
any loss or damages arising from the bankruptcy, insolvency or tortious act of
any person, firm or corporation with whom or which any monies, securities or
effects shall be lodged or deposited or for any loss occasioned by any error of
judgment or oversight on his part, or for any loss, damage or misfortune
whatever which may happen in the execution of the duties of his respective
office or trust or in relation thereto unless the same shall happen by or
through his own willful act of default, negligence, breach of trust or breach of
duty.
The Articles of the Company provide that the directors of the Company
may rely upon the accuracy of any statement of fact represented by an officer of
the Company to be correct, or upon statements in a written report of the auditor
of the Company, and shall not be reasonable or held liable for any loss or
damage resulting in the paying of any dividends or otherwise acting in good
faith upon any such statement.
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The Articles of the Company permit the directors to cause the Company
to purchase and maintain insurance for the benefit of any person who was or is a
director, officer, employee or agent of the Company or is or was serving at the
request of the Company as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise against any
liability incurred by him as a director, officer, employee or agent.
COMMISSION POLICY
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or persons controlling the Company,
the Company has been informed that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is therefore unenforceable.
The corporation shall indemnify and hold harmless persons who serve at
its express written request as directors or officers of another organization in
which the corporation owns shares or of which it is a creditor.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
(4.1) The Certificate of Incorporation of the Registrant (previously filed as
Exhibit 3a to the Registrant's Registration Statement on Form S-1, File
No. 33-48340, and incorporated herein by reference)
(4.2) Articles (Bylaws) of the Registrant (previously filed as Exhibit 3b to
the Registrant's Registration Statement on Form S-1, File No. 33-48340,
and incorporated herein by reference)
(4.3) Form of Common Stock Certificate (previously filed as Exhibit No. 4c to
the Registrant's Registration Statement on Form S-1, File No. 33-48340,
and incorporated herein by reference)
(5) Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., with
respect to the legality of the original issuance of securities being
registered
(24.1) Consent of Ernst & Young LLP
(24.2) Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
(included in Exhibit 5)
(25) Power of Attorney to file future amendments (set forth on the signature
page of this Registration Statement)
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(99.1) PLC Systems Inc. 1995 Stock Option Plan (previously filed as Exhibit
No. 4(d) to the Registrant's Registration Statement on Form S-8, File
No. 33-95168, and incorporated herein by reference)
(99.2) PLC Systems Inc. 1997 Executive Stock Option Plan (previously filed as
Exhibit No. 10(b) to the Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 1997, File No.
1-11388, and incorporated herein by reference)
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;
(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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) (Section 230.424(b) of this
chapter) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 Registration Statement is on Form S-3 or Form S-8, and
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 this
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.
(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
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Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934
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 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 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 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 Franklin, Commonwealth of Massachusetts, on April 30,
1998.
PLC SYSTEMS INC.
By /s/ William C. Dow
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William C. Dow
President and Chief Executive Officer
Each person whose signature appears below constitutes and appoints
William C. Dow and Patricia L. Murphy, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them, for him and in his name, place and stead, and in any and all
capacities, to sign any and all amendments (including post-effective amendments)
to this Registration Statement on Form S-8 of PLC Systems, Inc. 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 or necessary to be done in or
about the premises, as full 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 their 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, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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Signature Title Date
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<S> <C> <C>
/s/ William C. Dow President, Chief Executive April 30, 1998
- ------------------------------------ Officer and Director
William C. Dow (principal executive officer)
/s/ Patricia L. Murphy Chief Financial Officer and April 30, 1998
- ------------------------------------ Treasurer
Patricia L. Murphy (principal financial officer and
Principal Accounting Officer)
/s/ Robert I. Rudko, Ph.D. Chairman of the Board of April 30, 1998
- ------------------------------------
Robert I. Rudko, Ph.D. Directors
/s/ Harold P. Capozzi Director April 30, 1998
- ------------------------------------
Harold P. Capozzi
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/s/ H. B. Brent Norton , M.D. Director April 30, 1998
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H.B. Brent Norton, M.D.
/s/ Edward H. Pendergast Director April 30, 1998
- ------------------------------------
Edward H. Pendergast
/s/ Kenneth J. Pulkonik Director April 30, 1998
- ------------------------------------
Kenneth J. Pulkonik
/s/ Roberts A. Smith, Ph.D. Director April 30, 1998
- ------------------------------------
Roberts A. Smith, Ph.D.
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PLC SYSTEMS, INC.
INDEX TO EXHIBITS FILED WITH
FORM S-8 REGISTRATION STATEMENT
Exhibit
Number Description
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4.1 The Certificate of Incorporation of the Registrant (previously filed
as Exhibit 3a to the Registrant's Registration Statement on Form
S-1, File No. 33-48340, and incorporated herein by reference)
4.2 Articles (Bylaws) of the Registrant (previously filed as Exhibit 3b
to the Registrant's Registration Statement on Form S-1, File No.
33-48340, and incorporated herein by reference)
4.3 Form of Common Stock Certificate (previously filed as Exhibit No. 4c
to the Registrant's Registration Statement on Form S-1, File No.
33-48340, and incorporated herein by reference)
5 Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. as to
the legality of shares being registered
24.1 Consent of Ernst & Young LLP
24.2 Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo,
P.C.(included in opinion of counsel filed as Exhibit 5)
25 Power of Attorney to file future amendments (set forth on the
signature page of this Registration Statement.)
99.1 PLC Systems Inc. 1995 Stock Option Plan (previously filed as Exhibit
No. 4(d) to the Registrant's Registration Statement on Form S-8,
File No. 33-95168, and incorporated herein by reference)
99.2 PLC Systems Inc. 1997 Executive Stock Option Plan (previously filed
as Exhibit No. 10(b) to the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended September 30, 1997, File No.
1-11388, and incorporated herein by reference)
<PAGE> 1
EXHIBIT 5
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
701 Pennsylvania Avenue, N.W. Telephone: 617/542-6000
Washington, D.C. 20004 Fax: 617/542-2241
Telephone: 202/434-7300
Fax: 202/434-7400
May 1, 1998
Board of Directors
PLC Systems Inc.
10 Forge Park
Franklin, Massachusetts 02038
Gentlemen:
We have acted as counsel to PLC Systems Inc.., a corporation organized
under the laws of British Columbia (the "Company"), with respect to the
preparation and filing with the Securities and Exchange Commission of a
Registration Statement on Form S-8 (the "Registration Statement"), pursuant to
which the Company is registering an aggregate of 1,350,000 shares of its common
stock, no par value per share (the "Shares"), under the Securities Act of 1933,
as amended. This opinion is being rendered in connection with the filing of the
Registration Statement. All capitalized terms used herein and not otherwise
defined shall have the respective meanings given to them in the Registration
Statement.
In connection with this opinion, we have examined the Company's
Certificate of Incorporation and Bylaws, both as currently in effect; such other
records of the corporate proceedings of the Company and certificates of the
Company's officers as we have deemed relevant; and the Registration Statement
and the exhibits thereto.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such copies.
Based upon the foregoing, we are of the opinion that (i) the Shares
have been duly authorized by the Company and (ii) the Shares, when issued and
sold as described in the Registration Statement, will be duly and validly
issued, fully paid and non-assessable shares of the Company.
<PAGE> 2
Our opinion is limited to the General Corporation Laws of the State of
Delaware, and we express no opinion with respect to the laws of any other
jurisdiction. No opinion is expressed herein with respect to the qualification
of the Shares under the securities or blue sky laws of any state or any foreign
jurisdiction.
We understand that you wish to file this opinion as an exhibit to the
Registration Statement, and we hereby consent thereto.
Very truly yours,
/s/ Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C.
----------------------------------------
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
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EXHIBIT 24.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1995 Stock Option Plan and the 1997
Executive Stock Option Plan of PLC Systems Inc. for the registration of
1,350,000 shares of its common stock, of our report dated February 20, 1998,
with respect to the consolidated financial statements and schedule of PLC
Systems Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Boston, Massachusetts
April 27, 1998
