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As filed with the Securities and Exchange Commission on May 25, 2000
Registration No. 333-________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
PLC SYSTEMS INC.
(Exact Name of Registrant as Specified in Its Charter)
YUKON TERRITORY, CANADA 04-3153858
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
10 FORGE PARK, FRANKLIN, MA 02038
(Address of Principal Executive Offices) (Zip Code)
2000 EQUITY INCENTIVE PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
JAMES G. THOMASCH
PLC SYSTEMS INC.
10 FORGE PARK
FRANKLIN, MASSACHUSETTS 02038
(Name and Address of Agent for Service)
(508) 541-8800
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
Proposed Maximum Proposed Maximum
Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of
Registered Registered Share Price Registration Fee
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
<S> <C> <C> <C> <C>
Common Stock, no par 900,000 $1.6875 $1,518,750.00(2) $400.95
value shares (1)
- ----------------------------- ----------------- ---------------------- --------------------- -----------------------
</TABLE>
(1) The number of shares of common stock, no par value per share ("Common
Stock"), consists of the aggregate number of shares which may be sold in
connection with the Registrant's 2000 Equity Incentive Plan and the 2000
Employee Stock Purchase Plan.
(2) Estimated solely for the purpose of calculating the registration fee, and
based on the average of the high and low prices of the Common Stock as
reported by the American Stock Exchange on May 22, 2000 in accordance with
Rules 457(c) and 457(h) under the Securities Act of 1933, as amended (the
"Securities Act").
<PAGE>
PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Registrant's 2000 Equity Incentive Plan and the
2000 Employee Stock Purchase Plan pursuant to Rule 428(b)(1) of the Securities
Act.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Registrant is subject to the informational and reporting
requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this Registration Statement by reference:
(1) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Exchange Act, or the latest
prospectus filed pursuant to Rule 424(b) under the
Securities Act that contains audited financial statements
for the Registrant's latest fiscal year for which such
statements have been filed.
(2) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the fiscal year covered
by the document referred to in (1) above.
(3) The description of the Common Stock of the Registrant,
contained in a registration statement filed under the
Exchange 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 Exchange Act, prior to the filing of a
post-effective amendment which indicates that all shares of Common Stock offered
hereby have been sold or which deregisters all shares of Common Stock then
remaining unsold, shall be deemed to be incorporated by reference herein and to
be part hereof from the date of the filing of such documents. Any statement
contained in a 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 statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Common Stock being offered hereby will be passed
upon for the Registrant by Anton Campion Macdonald and Oyler.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Yukon Business Corporation Act (the "Business Corporations Act"),
Section 126, enables a corporation to indemnify a director or officer or a
former director or officer of the Registrant, or a director or officer or a
former director or officer of a corporation of which it is or was a shareholder
or creditor, 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, including an amount paid to settle an action or satisfy a judgment
reasonably incurred by him, in any civil, criminal or administrative action, or
proceeding to which he is made a party by reason of being or having been a
director or officer if:
a. he acted honestly and in good faith with a view to the best
interest of the corporation; and
b. in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he had reasonable grounds
for believing that his conduct was lawful.
The Business Corporations Act also enables a corporation, with the approval of
the Supreme Court of the Yukon Territory, to indemnify such a director or
officer in respect of an action by or on behalf of the corporation or body
corporate to procure a judgment in its favor, to which he is made a party by
reason of having been a director or officer of the corporation or body
corporate, against all costs, charges and expenses reasonably incurred by him in
connection with the action if he fulfils the conditions set forth in
subparagraphs (a) and (b) above.
The Business Corporations Act also provides that a company may purchase
and maintain insurance for the benefit of a director or officer or a former
director or officer of the Company, or a director or officer or a former
director or officer of a corporation of which it is or was a shareholder or
creditor, and his heirs and personal representatives, against liability incurred
by him as:
a. in his capacity as a director or officer of the corporation,
except where the liability relates to his failure to act honestly
and in good faith with a view to the best interests of the
corporation, or
b. in his capacity as a director or officer of another body
corporate if he acts or acted in that capacity at the
corporation's request; except where the liability relates to his
failure to act honestly and in good faith with a view to the best
interests of the body corporate.
The Registrant's By-Laws provide that no director of the Registrant
shall be liable for the acts, receipts, neglects or defaults of any other
director or officer or employee, or for joining in
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any receipt or other act for conformity, or for any loss, damage or expense
happening to the Registrant through the insufficiency or deficiency of title to
any property acquired for or on behalf of the Registrant, or for the
insufficiency or deficiency of any security in or upon which any of the moneys
of the Registrant shall be invested, or for any loss or damage arising from the
bankruptcy, insolvency or tortuous acts of any person with whom any of the
moneys, securities or effects of the Registrant are deposited, or for any loss
occasioned by any error of judgement or oversight on his part, or for any other
loss, damage or misfortune whatever which shall happen in the execution of the
duties of his office or in relation thereto, unless the same are occasioned by
his own willful neglect or default or from any breach of his duty to act in
accordance with the Business Corporations Act and the regulations thereunder.
The Registrant's By-Laws provide that subject to the limitations
contained in the Business Corporations Act, and to the extent he is otherwise
fairly and reasonably entitled thereto, the Registrant shall indemnify a
director or officer, a former director or officer, or a person who acts or acted
at the Registrant's request as a director or officer of a body corporate of
which the Registrant is or was a shareholder or creditor (or a person who
undertakes or has undertaken any liability on behalf of the Registrant or any
such body corporate) and his heirs and legal representatives, against all costs,
charges and expenses, including an amount paid to settle an action or satisfy a
judgment, reasonably incurred by him in respect of any civil, criminal or
administrative action or proceeding to which he is made a party by reason of
being or having been a director or officer of the Registrant or such body
corporate, if:
(i) he acted honestly and in good faith with a view to the best
interests of the Registrant; and
(ii) in the case of a criminal or administrative action or proceeding
that is enforced by a monetary penalty, he had reasonable grounds
for believing that his conduct was lawful.
The Registrant's By-Laws also provide that subject to the limitations
contained in the Business Corporations Act, the Registrant may purchase and
maintain insurance for the benefit of its directors and officers as the board
may from time to time determine.
Furthermore, the Registrant's By-Laws provide that directors may rely
upon the accuracy of any statement of fact represented by an officer of the
Registrant to be correct or upon statements in a written report of the auditor
of the Registrant and shall not be responsible or held liable for any loss or
damage resulting from the paying of any dividends or otherwise acting in good
faith upon any such statement.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
Item 8. EXHIBITS
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
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Item 9. UNDERTAKINGS
1. 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;
(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, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in the 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 rage may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in the
maximum 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 (i) and (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 Exchange Act that are incorporated by
reference 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.
(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.
2. 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 benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated
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<PAGE>
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.
3. 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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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Franklin, Massachusetts on May 24, 2000.
PLC SYSTEMS INC.
By: /s/ Mark R. Tauscher
--------------------------------
Mark R. Tauscher
President and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of PLC Systems Inc. hereby
severally constitute and appoint Mark R. Tauscher and James G. Thomasch, and
each of them singly, our true and lawful attorneys with full power to them, and
each of them singly, to sign for us and in our names in the capacities indicated
below, the Registration Statement on Form S-8 filed herewith and any and all
subsequent amendments to said Registration Statement, and generally to do all
such things in our names and behalf in our capacities as officers and directors
to enable PLC Systems Inc. to comply with all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by said attorneys, or any of them, to said Registration Statement and
any and all amendments thereto.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE
DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Mark R. Tauscher President, Chief Executive Officer and May 24, 2000
- --------------------------- Director (Principal Executive Officer)
Mark R. Tauscher
/s/ Edward H. Pendergast Chairman of the Board of Directors May 24, 2000
- ---------------------------
Edward H. Pendergast
/s/ James G. Thomasch Chief Financial Officer and Treasurer May 24, 2000
- --------------------------- (Principal Financial Officer and
James G. Thomasch Principal Accounting Officer)
/s/ Kevin J. Dunn Director May 24, 2000
- ---------------------------
Kevin J. Dunn
/s/ Benjamin Holmes Director May 24, 2000
- ---------------------------
Benjamin Holmes
Director
- ---------------------------
Alan H. Magazine
/s/ H.B. Brent Norton, M.D. Director May 24, 2000
- ---------------------------
H.B. Brent Norton, M.D.
/s/ Kenneth J. Pulkonik Director May 24, 2000
- ---------------------------
Kenneth J. Pulkonik
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ Robert I. Rudko, PH.D. Chief Scientist and Director May 24, 2000
- ---------------------------
Robert I. Rudko, Ph.D.
Director
- ---------------------------
Roberts A. Smith, Ph.D.
</TABLE>
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<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ -----------
<S> <C>
4.1 (1) Certificate of Incorporation of the Registrant.
4.2 (2) Articles of Continuance of the Registrant.
4.3 (2) By-Laws of the Registrant.
4.4 (1) Specimen Certificate for Common Stock of the Registrant.
5.1 Opinion of Anton Campion Macdonald and Oyler.
23.1 Consent of Anton Campion Macdonald and Oyler (included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
24.1 Power of Attorney (included in the signature pages of this Registration
Statement).
</TABLE>
(1) Incorporated by reference to the exhibits to the Registrant's Registration
Statement on Form S-1, as amended (File No. 333-48340).
(2) Incorporated by reference to the exhibits to the Registrant's Annual Report
on Form 10-K for the year ended December 31, 1999.
<PAGE>
EXHIBIT 5.1
[ANTON CAMPION MACDONALD OYLER LETTERHEAD]
May 24, 2000 FILE NO: 20000284
PLC Systems Inc.
10 Forge Park
Franklin, MA 02038
Dear Sirs:
RE: REGISTRATION STATEMENT ON FORM S-8
We have acted as Yukon Territory counsel on behalf of PLC Systems Inc., a
corporation organized under the laws of the Yukon Territory, Canada (the
"Company"), in connection with the registration of 900,000 shares of Common
Stock of the Company (the "Common Stock") issuable under the Company's 2000
Equity Incentive Plan and the 2000 Employee Stock Purchase Plan (collectively,
the "Plans"). In connection therewith, we have examined, among other things, the
Registration Statement on Form S-8 (the "Registration Statement") proposed to be
filed by the Company with the Securities and Exchange Commission on or about May
25, 2000. We have also examined the proceedings and other actions taken by the
Company in connection with the authorization of the shares of Common Stock
issuable under the Plans and such other matters as we deemed necessary for
purposes of rendering this opinion.
Based upon the foregoing, and in reliance thereon, we are of the opinion, as of
the date hereof, that the shares of Common Stock issuable under the Plans, when
issued, delivered and paid for in accordance with the Plans and in the manner
described in the Registration Statement, will be validly issued, fully paid and
non-assessable.
In rendering this opinion we express no opinion as to the laws of any
jurisdiction other than the laws of the Yukon Territory.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of the
Securities Act of 1933, as amended, or the General Rules and Regulations of the
Securities and Exchange Commission.
Yours truly,
ANTON CAMPION MACDONALD OYLER
/s/ Gareth C. Howells
Gareth C. Howells
GCH/mlp
<PAGE>
EXHIBIT 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement on
Form S-8 pertaining to the 2000 Equity Incentive Plan and the 2000 Employee
Stock Purchase Plan of PLC Systems Inc. for the registration of 900,000 shares
of its common stock, of our report dated February 18, 2000, except for Note 12,
as to which date is March 28, 2000, 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, 1999, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Boston, Massachusetts
May 22, 2000
