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As filed with the Securities and Exchange Commission on December 1, 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 NON-STATUTORY STOCK OPTION 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
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----------------------------- ----------------- ---------------------- --------------------- -----------------------
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 value 317,672 $.53125 $168,763(1) $44.56
shares
----------------------------- ----------------- ---------------------- --------------------- -----------------------
</TABLE>
(1) 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 November 28, 2000 in
accordance with Rules 457(c) and 457(h) under the Securities Act of
1933, as amended (the "Securities Act").
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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 Non-statutory Stock Option 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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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 November 30, 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.
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Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Mark R. Tauscher President, Chief Executive Officer and November 30, 2000
----------------- Director (Principal Executive Officer)
Mark R. Tauscher
/s/ James G. Thomasch Chief Financial Officer and Treasurer November 30, 2000
----------------- (Principal Financial Officer and
James G. Thomasch Principal Accounting Officer)
/s/ Edward H. Pendergast Chairman of the Board of Directors November 30, 2000
---------------------
Edward H. Pendergast
/s/ Kevin J. Dunn Director November 30, 2000
----------------
Kevin J. Dunn
/s/ Benjamin Holmes Director November 30, 2000
----------------
Benjamin Holmes
/s/ Alan H. Magazine Director November 30, 2000
------------------
Alan H. Magazine
/s/ H.B. Brent Norton, M.D. Director November 30, 2000
------------------------
H.B. Brent Norton, M.D.
/s/ Kenneth J. Pulkonik Director November 30, 2000
----------------------
Kenneth J. Pulkonik
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/s/ Robert I. Rudko, Ph.D. Chief Scientist and Director November 30, 2000
------------------------
Robert I. Rudko, Ph.D.
/s/ Roberts A. Smith, Ph.D. Director November 30, 2000
------------------------
Roberts A. Smith, Ph.D.
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Description
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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.
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