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As filed with the Securities and Exchange Commission on August 6, 1997
Registration No. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OCULAR SCIENCES, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-2985696
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
475 ECCLES AVENUE
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 583-1400
(Address and Telephone Number of Registrant's Principal Executive Offices)
1989 STOCK OPTION PLAN
1997 EQUITY INCENTIVE PLAN
1997 DIRECTORS STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
GREGORY E. LICHTWARDT
CHIEF FINANCIAL OFFICER
OCULAR SCIENCES, INC.
475 ECCLES AVENUE
SOUTH SAN FRANCISCO, CALIFORNIA 94080
(650) 583-1400
(Name, Address and Telephone Number of Agent For Service)
COPIES TO:
David K. Michaels, Esq.
Jody Hucko, Esq.
Fenwick & West LLP
Two Palo Alto Square
Palo Alto, California 94306
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CALCULATION OF REGISTRATION FEE (5)
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AMOUNT PROPOSED PROPOSED MAXIMUM AMOUNT OF
TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE PRICE FEE
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Common Stock, 2,948,174(1) $20.125(2) $59,332,002(2) $17,980
$0.001 par value
Common Stock, 1,829,614(3) $ 3.04(4) $ 5,562,027 $ 1,686
$0.001 par value
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(1) As of August 4, 1997, shares (i) available for issuance upon exercise of
awards not yet granted under the 1997 Equity Incentive Plan (the "Incentive
Plan") and the 1997 Directors Stock Option Plan (the "Directors Plan"),
(ii) subject to outstanding options granted as of such date under the
Incentive Plan and the Directors Plan and (iii) reserved for issuance under
the 1997 Employee Stock Purchase Plan.
(2) Estimated pursuant to Rule 457(h) and (c) solely for the purpose of
calculating the registration fee, based on the average of the high and low
prices of the Registrant's Common Stock on the Nasdaq National Market on
August 5, 1997.
(3) Shares subject to outstanding options as of August 4, 1997 under the 1989
Stock Option Plan.
(4) Weighted average per share exercise price for such outstanding options
pursuant to Rule 457(h)(1).
(5) All values reflect the two-for-one split of the Registrant's outstanding
Common Stock effective as of August 4, 1997.
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OCULAR SCIENCES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(a) the Registrant's prospectus filed pursuant to Rule 424(b) under
the Securities Act of 1933, as amended (the "Securities Act"),
that contains consolidated audited financial statements of the
Registrant for the fiscal years ended December 31, 1995 and
December 31, 1996.
(b) the description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed under
Section 12(g) of the Securities Exchange Act of 1934, as
amended (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 securities registered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed incorporated by reference herein and to be a part hereof from the date
of the filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS AND LIMITATION OF LIABILITY.
As permitted by the Delaware General Corporation Law, the
Registrant's Certificate of Incorporation includes a provision that eliminates
the personal liability of its directors for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for
any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Bylaws of
the Registrant provide that (i) the Registrant is required to indemnify its
directors and officers to the fullest extent permitted by the Delaware General
Corporation Law, subject to certain very limited exceptions, (ii) the Registrant
may indemnify its other employees and agents as set forth in the Delaware
General Corporation Law, (iii) the Registrant is required to advance expenses,
as incurred, to its directors and executive officers in connection with a legal
proceeding to the fullest extent permitted by the Delaware General Corporation
Law, subject to certain very limited exceptions, (iv) the rights conferred in
the Bylaws are not exclusive and (v) the Registrant is authorized to enter into
indemnification agreements with its directors, officers, employees and agents.
The Registrant has entered into indemnity agreements with each of its
current directors and executive officers to give such directors and executive
officers additional contractual assurances regarding the scope of the
indemnification set forth in the Registrant's Bylaws and to provide additional
procedural protections. At present, there is no pending litigation or proceeding
involving a director, officer or employee of the Registrant regarding which
indemnification is sought, nor is the Registrant aware of any threatened
litigation that may result in claims for indemnification.
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The indemnification provision in the Bylaws and the indemnity
agreements entered into between the Registrant and its directors and executive
officers may be sufficiently broad to permit indemnification of the Registrant's
directors and executive officers for liabilities arising under the Securities
Act.
As authorized by the Registrant's Bylaws, the Registrant, with
approval by the Registrant's Board of Directors, has applied for, and expects to
obtain, directors' and officers' liability insurance with a per claim and annual
aggregate coverage limit of $30 million.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
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4.01 Registrant's Certificate of Incorporation (incorporated herein
by reference to Exhibit 3.01 of the Form S-1, Registration No.
333-27421 originally filed with the Commission on May 19, 1997,
as subsequently amended on June 4, 1997, July 2, 1997, July 15,
1997 and July 31, 1997 (the "Form S-1"))
4.02 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.02 of the Form
S-1)
4.03 Form of Registrant's Restated Certificate of Incorporation to
be effective upon the closing of the Registrant's initial
public offering (incorporated herein by reference to Exhibit
3.03 of the Form S-1)
4.04 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.04 of the Form S-1)
4.05 Registrant's 1989 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.01 of the Form
S-1)
4.06 Registrant's 1997 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the Form
S-1)
4.07 Registrant's 1997 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.04 of
the Form S-1)
4.08 Registrant's 1997 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.05 of
the Form S-1)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of KPMG Peat Marwick LLP, Independent Auditors
24.01 Power of Attorney (see page 5)
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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:
(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 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;
(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 with or furnished to
the Commission 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.
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 Section 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 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.
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 provisions discussed in Item 6 hereof, 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 hereby, 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 South San Francisco, State of California, on this 6th
day of August, 1997.
OCULAR SCIENCES, INC.
By: /s/ John D. Fruth
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John D. Fruth, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature
appears below constitutes and appoints John D. Fruth and Gregory E. Lichtwardt,
and each of them, his true and lawful attorneys-in-fact and agents with full
power of substitution, 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 on Form S-8, and to file the same with all
exhibits thereto and all 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 and about the premises, 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 or
their 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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PRINCIPAL EXECUTIVE OFFICER:
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/s/ John D. Fruth Chairman of the Board, President August 6, 1997
- ------------------------ and Chief Executive Officer
John D. Fruth
PRINCIPAL FINANCIAL OFFICER
AND PRINCIPAL ACCOUNTING OFFICER:
/s/ Gregory E. Lichtwardt Vice President, Finance, Chief August 6, 1997
- ------------------------ Financial Officer and Treasurer
Gregory E. Lichtwardt
ADDITIONAL DIRECTORS
/s/ Edgar J. Cummins Director August 6, 1997
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Edgar J. Cummins
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ADDITIONAL DIRECTORS (CONTINUED):
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Director
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Terence M. Fruth
/s/ William R. Grant Director August 6, 1997
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William R. Grant
/s/ Daniel J. Kunst Director August 6, 1997
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Daniel J. Kunst
/s/ Francis R. Tunney, Jr. Director August 6, 1997
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Francis R. Tunney, Jr.
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EXHIBIT INDEX
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Exhibit No. Description
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4.01 Registrant's Certificate of Incorporation (incorporated
herein by reference to Exhibit 3.01 to the Form S-1)
4.02 Registrant's Certificate of Designation of Preferred Stock
(incorporated herein by reference to Exhibit 3.02 of the Form
S-1)
4.03 Form of Registrant's Restated Certificate of Incorporation to
be effective upon the closing of the Registrant's initial
public offering (incorporated herein by reference to Exhibit
3.03 of the Form S-1)
4.04 Registrant's Bylaws (incorporated herein by reference to
Exhibit 3.04 of the Form S-1)
4.05 Registrant's 1989 Stock Option Plan and related documents
(incorporated herein by reference to Exhibit 10.01 of the
Form S-1)
4.06 Registrant's 1997 Equity Incentive Plan and related documents
(incorporated herein by reference to Exhibit 10.03 of the
Form S-1)
4.07 Registrant's 1997 Directors Stock Option Plan and related
documents (incorporated herein by reference to Exhibit 10.04
of the Form S-1)
4.08 Registrant's 1997 Employee Stock Purchase Plan and related
documents (incorporated herein by reference to Exhibit 10.05
of the Form S-1)
5.01 Opinion of Fenwick & West LLP
23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01)
23.02 Consent of KPMG Peat Marwick LLP, Independent Auditors
24.01 Power of Attorney (see page 5)
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EXHIBIT 5.01
[FENWICK & WEST LLP LETTERHEAD]
August 6, 1997
Ocular Sciences, Inc.
475 Eccles Avenue
South San Francisco, CA 94080
Gentlemen/Ladies:
At your request, we have examined the Registration Statement on Form S-8
(the "Registration Statement") to be filed by you with the Securities and
Exchange Commission on or about August 6, 1997 in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
4,777,788 shares of your Common Stock (the "Stock") subject to issuance by you
upon the exercise of (i) stock options granted by you under your 1989 Stock
Option Plan, as amended (the "1989 Option Plan"), (ii) stock options, stock
bonuses and restricted stock awards granted or to be granted by you under your
1997 Equity Incentive Plan (the "Incentive Plan"), (iii) stock options granted
or to be granted by you under your 1997 Directors Stock Option Plan (the
"Directors Option Plan") and (iv) purchase rights to be granted by you under
your 1997 Employee Stock Purchase Plan (the "Purchase Plan") (collectively, with
the 1989 Option Plan, Incentive Plan and Directors Option Plan, the "Plans").
In rendering this opinion, we also have examined the following:
(1) the applicable prospectus associated with each of the Plans;
(2) the minutes of meetings and actions by written consent of your
stockholders and Board of Directors and the shareholders and
Board of Directors of O.S.I. Corporation, your predecessor
("O.S.I."), that are contained in your minute books and the minute
books of O.S.I. in our possession;
(3) computer reports of stock options granted by O.S.I. in our
possession, and a report of stock options issued by you and by
O.S.I., prepared by you as of August 4, 1997 and provided to us;
(4) your Registration Statement on Form S-1 (Registration Number
333-27421), together with copies of Exhibits 3.01-3.04, 10.01 and
10.03-10.05 filed therewith, as declared effective by the SEC on
August 4, 1997;
(5) your Registration Statement on Form 8-A (Commission File Number
000-22623), as declared effective by the SEC on July 28, 1997; and
(6) a Management Certificate of even date herewith, duly executed and
delivered by you.
In our examination of documents for purposes of this opinion, we have
assumed, and express no opinion as to, the genuineness of all signatures on
original documents, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to us as
copies, the legal capacity of all persons and entities, the lack of any
undisclosed terminations, modifications, waivers or amendments to any documents
reviewed by us and the due execution and delivery of all documents where due
execution and delivery are prerequisites to the effectiveness thereof.
As to matters of fact relevant to this opinion, we have relied solely
upon our examination of the documents referred to above and have assumed the
current accuracy and completeness of the information obtained from the documents
referred to above. We have made no independent investigation or other attempt to
verify the accuracy of any of such information or to determine the existence or
non-existence of any other factual matters; however, we are not aware of any
facts that would lead us to believe that the opinion expressed herein is not
accurate.
Based on the foregoing, it is our opinion that the 4,777,788 shares of the
Stock that may be issued and sold by you upon, collectively, the exercise of the
(i) stock options granted under the 1989 Option Plan, (ii) stock options, stock
bonuses or restricted stock awards granted or to be granted under the Incentive
Plan, (iii) stock options granted or to be granted under the Directors Option
Plan, and (iv) purchase rights to be granted under the Purchase Plan, each when
issued and sold in the manner referred to in the applicable Plan and the
applicable prospectus associated with such Plan, will be validly issued, fully
paid and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us, if any, in the
Registration Statement, the Prospectus constituting a part thereof and any
amendments thereto.
This opinion speaks only as of its date and is intended solely for your
use as an exhibit to the Registration Statement for the purpose of the above
sale of the Stock and is not to be relied upon for any other purpose.
Very truly yours,
/s/ Fenwick & West LLP
----------------------
FENWICK & WEST LLP
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EXHIBIT 23.02
CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-8 pertaining to the 1989 Stock Option Plan, 1997 Equity Incentive
Plan, 1997 Directors Stock Option Plan and 1997 Employee Stock Purchase Plan of
Ocular Sciences, Inc. of our reports dated February 14, 1997, except for Notes 1
and 16 of the Notes to the Consolidated Financial Statements which are as of
July 14, 1997, relating to the consolidated balance sheets of Ocular Sciences,
Inc. as of December 31, 1995 and 1996, and the related consolidated statements
of income, stockholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1996, and related schedule, which reports
appear in the Registration Statement (Form S-1, No. 333-27421) and the related
Prospectus, filed with the Securities and Exchange Commission.
KPMG PEAT MARWICK LLP
San Francisco, California
August 5, 1997
