<PAGE>
As filed with the Securities and Exchange Commission on June 12, 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
_____________________
AVECOR CARDIOVASCULAR INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1695729
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
7611 NORTHLAND DRIVE 55428
MINNEAPOLIS, MINNESOTA (Zip Code)
(Address of Principal Executive Offices)
_____________________
1995 NON-EMPLOYEE DIRECTOR OPTION PLAN
EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
______________________
Gregory J. Melsen
Chief Financial Officer
7611 Northland Drive
Minneapolis, Minnesota 55428
(Name and address of agent for service)
(612) 391-9000
(Telephone number, including area code, of agent for service)
_________________________
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
IMMEDIATELY UPON THE FILING OF THIS REGISTRATION STATEMENT
____________________
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO BE AMOUNT TO BE REGISTERED(1) PROPOSED MAXIMUM AGGREGATE OFFERING REGISTRATION FEE
REGISTERED OFFERING PRICE PER SHARE(2) PRICE(2)
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<S> <C> <C> <C> <C>
Common Stock, par value
$.01 per share (3) 275,000 shares $11.31 $3,110,063 $947.44
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(1) In addition, pursuant to Rule 416 under the Securities Act of
1933, as amended, (the "Securities Act") this Registration
Statement includes an indeterminate number of additional shares
as may be issuable as a result of anti-dilution provisions
described herein.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee and calculated pursuant to Rule 457(h) under the
Securities Act as follows: (i) with respect to options to
purchase shares previously granted, on the basis of the weighted
average exercise price of such options; and (ii) with respect to
options to be granted, on the basis of the average between the
high and low reported sales prices of the Registrant's Common
Stock on June 6, 1997 of $10.875 per share, as reported by the
Nasdaq National Market.
(3) Each share of Common Stock includes one Preferred Stock Purchase
Right.
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PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Company with the Commission (File No.
0-21330) are incorporated by reference in this Registration Statement: (1) the
Company's Annual Report on Form 10-K for the year ended December 31, 1996; (2)
the Company's Quarterly Report on Form 10-Q for the quarter ended March 31,
1997; (3) all other reports filed by the Company pursuant to Sections 13(a) or
15(d) of the Exchange Act since December 31, 1996; (4) the description of the
Company's Common Stock contained in its Registration Statement on Form 8-A,
including any amendments or reports filed for the purpose of updating such
description; and (5) the description of the Company's Preferred Stock Purchase
Rights contained in the Company's Registration Statement on Form 8-A, including
any amendments or reports filed for the purpose of updating such description.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all shares of Common Stock offered pursuant to this
Registration Statement have been sold or that de-registers all shares of Common
Stock then remaining unsold, shall be deemed to be incorporated by reference in
this Registration Statement and to be a part hereof from the date of filing of
such documents.
The consolidated financial statements and related financial statement
schedule of the Company, which are included or incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31, 1996, and
incorporated by reference in this Registration Statement, have been audited by
Coopers & Lybrand L.L.P., independent certified public accountants, for the
periods indicated in such firm's reports thereon. Such financial statements and
financial statement schedule have been incorporated in this Registration
Statement by reference in reliance on such firm's reports given upon their
authority as experts in accounting and auditing. To the extent that Coopers &
Lybrand L.L.P. audits and reports on the financial statements and related
financial statement schedule(s) of the Company issued at future dates, and
consents to the use of their reports thereon, such financial statements and
related financial statement schedule(s) will also be incorporated by reference
in this Registration Statement in reliance upon their reports and said
authority.
ITEM 4. DESCRIPTION OF SECURITIES.
The descriptions of the Company's Common Stock and the Preferred Stock
Purchase Rights to be offered pursuant to this Registration Statement have been
incorporated by reference into this Registration Statement as described in Item
3 of this Part II.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock offered hereby will be passed
upon for the Company by Oppenheimer Wolff & Donnelly, Minneapolis, Minnesota.
Richard G. Lareau, a member of Oppenheimer Wolff & Donnelly, is the Secretary of
the Company. Members of Oppenheimer Wolff & Donnelly beneficially own, in
aggregate, approximately 20,500 shares of the Company's Common Stock.
II-1
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 302A.521 of the Minnesota Business Corporation Act provides that a
Minnesota business corporation shall indemnify any director, officer, employee
or agent of the corporation made or threatened to be made a party to a
proceeding, by reason of the former or present official capacity (as defined) of
the person, against judgments, penalties, fines, settlements and reasonable
expenses incurred by the person in connection with the proceeding if certain
statutory standards are met. "Proceeding" means a threatened, pending or
completed civil, criminal, administrative, arbitration or investigative
proceeding, including one by or in the right of the corporation. Section
302A.521 contains detailed terms regarding such right of indemnification and
reference is made thereto for a complete statement of such indemnification
rights.
Article VI of the Company's Bylaws, as amended, provides that each director
and officer past or present, of the Company, and each person who serves or may
have served at the request of the Company as a director, officer, employee or
agent of another corporation or employee benefit plan, and their respective
heirs, administrators and executors, shall be indemnified by the Company in
accordance with, and to the fullest extent permissible by, applicable law.
The Company maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of the Company.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No securities are to be reoffered or resold pursuant to this Registration
Statement.
ITEM 8. EXHIBITS.
4.1 Second Restated Articles of Incorporation of the Company, as amended July
3, 1996 (incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1996 (File No.
0-21330)).
4.2 Bylaws of the Company, as amended May 3, 1996 (incorporated by reference to
Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1996 (File No. 0-21330)).
4.3 Specimen form of the Company's Common Stock Certificate (incorporated by
reference to Exhibit 4.1 to the Company's Quarterly Report on Form 10-Q for
the quarter ended September 30, 1996 (File No. 0-21330)).
4.4 Certificate of Designation, Preferences and Rights of the Company's Series
A Junior Preferred Stock (included in Exhibit 4.1).
4.5 Rights Agreement dated June 26, 1996 between the Company and Norwest Bank
Minnesota, N.A., which includes the form of Rights Certificate as Exhibit B
(incorporated by reference to Exhibit 4.1 to the Company's Current Report
on Form 8-K dated June 26, 1996 (File No. 0-21330)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly (filed herewith
electronically).
23.1 Consent of Oppenheimer Wolff & Donnelly (included in Exhibit 5.1).
II-2
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23.2 Consent of Coopers & Lybrand L.L.P (filed herewith electronically).
24.1 Power of Attorney (included on page II-5 of this Registration Statement).
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 this 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 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 (a)(1)(i) and (a)(1)(ii) do not
apply if 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 Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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 herein, 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, except as to
certain insurance policies, the registrant has been advised that in the opinion
of the Securities and Exchange commission such indemnification
II-3
<PAGE>
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.
II-4
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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 Brooklyn Park, State of Minnesota, on June 12, 1997.
AVECOR CARDIOVASCULAR INC.
By:/s/ Anthony Badolato
----------------------------------
Anthony Badolato
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Anthony Badolato and Gregory J. Melsen, and each of
them, as his or her true and lawful attorney-in-fact and agent, each with full
powers of substitution and re-substitution, for him and in his or her name,
place and stead, in any and all capacities, to sign any or 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
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed on June 12, 1997 by the following persons
in the capacities indicated.
/s/ Anthony Badolato Chief Executive Officer (Principal
- ------------------------------ Executive Officer) and Director
Anthony Badolato
/s/ Gregory J. Melsen Vice President - Finance, Treasurer and
- ------------------------------ Chief Financial Officer (Principal
Gregory J. Melsel Financial and Accounting Officer)
/s/ Edward E. Strickland Director
- ------------------------------
Edward E. Strickland
/s/ David W. Stassen Director
- ------------------------------
David W. Stassen
Director
- ------------------------------
J. Gordon Wright
II-5
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AVECOR CARDIOVASCULAR INC.
REGISTRATION STATEMENT
ON FORM S-8
INDEX TO EXHIBITS
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<TABLE>
<CAPTION>
Item
No. Description Method of Filing
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<S> <C> <C>
4.1 Second Restated Articles of Incorporation
of the Company, as amended July 3, 1996. . . Incorporated by reference to Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1996 (File No.
0-21330).
4.2 Bylaws of the Company, as amended
May 3, 1996. . . . . . . . . . . . . . . . . Incorporated by reference to Exhibit 3.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended March 31, 1996 (File
No. 0-21330 ).
4.3 Specimen form of the Company's Common
Stock Certificate . . . . . . . . . . . . . Incorporated by reference to Exhibit 4.1 to
the Company's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1996
(File No. 0-21330).
4.4 Certificate of Designation, Preferences and
Rights of the Company's Series A Junior
Preferred Stock . . . . . . . . . . . . . . Included in Exhibit 4.1.
4.5 Rights Agreement dated June 26, 1996 between
the Company and Norwest Bank Minnesota, N.A.,
which includes the form of Rights Certificate
as Exhibit B . . . . . . . . . . . . . . . . Incorporated by reference to Exhibit 4.1 to
the Company's Current Report on Form 8-K
dated June 26, 1996 (File No. 0-21330).
5.1 Opinion and Consent of Oppenheimer Wolff
& Donnelly . . . . . . . . . . . . . . . . . Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff & Donnelly. . . Included in Exhibit 5.1.
23.2 Consent of Coopers & Lybrand L.L.P.. . . . . Filed herewith electronically.
24.1 Power of Attorney. . . . . . . . . . . . . . Included on page II-5 of this Registration
Statement.
</TABLE>
<PAGE>
EXHIBIT 5.1
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June 12, 1997
Board of Directors
AVECOR Cardiovascular Inc.
7611 Northland Drive
Minneapolis, MN 55428
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to AVECOR Cardiovascular Inc., a Minnesota corporation
(the "Company"), in connection with the registration by the Company of 275,000
shares of the Company's Common Stock, $.01 par value, including certain
Preferred Stock Purchase Rights attached thereto (the "Shares"), issuable under
the Company's 1995 Non-Employer Director Option Plan and Employee Stock Purchase
Plan (collectively, the "Plans"), pursuant to the Company's Registration
Statement on Form S-8 filed with the Securities and Exchange Commission on June
12, 1997 (the "Registration Statement").
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuiness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of all natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, and subject to the qualifications and limitations stated
herein, it is our opinion that:
1. The Company has the corporate authority to issue the Shares in the manner
and under the terms set forth in the Registration Statement.
<PAGE>
Board of Directors
AVECOR Cardiovascular Inc.
June 12, 1997
Page 2
2. The Shares have been duly authorized and, when issued, delivered and paid
for in accordance with the Plans as set forth in the Registration
Statement, will be validly issued, fully paid and nonassessable.
We express no opinion with respect to laws other than those of the State of
Minnesota and the federal law of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement, to its use as part of the Registration Statement, and to
the use of our name under the caption "Item 5. Interests of Named Experts and
Counsel" in the Registration Statement.
We are furnishing this opinion to the Company solely for its benefit in
connection with the Registration Statement as described above. It is not to be
used, circulated, quoted or otherwise referred to for any other purpose. Other
than the Company, no one is entitled to rely on this opinion.
Very truly yours,
/s/ Oppenheimer Wolff & Donnelly
OPPENHEIMER WOLFF & DONNELLY
Plaza VII
45 South Seventh Street
Suite 3400
Minneapolis, MN 55402
<PAGE>
EXHIBIT 23.2
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CONSENT OF COOPERS & LYBRAND L.L.P.
We consent to the incorporation by reference in this registration statement of
AVECOR Cardiovascular Inc. on Form S-8 of our reports dated March 6, 1997, on
our audits of the consolidated financial statements and related financial
statement schedule of AVECOR Cardiovascular Inc. as of December 31, 1996 and
1995, and for the years ended December 31, 1996, 1995 and 1994, which reports
are included or incorporated by reference in AVECOR Cardiovascular Inc.'s Annual
Report on Form 10-K for the year ended December 31, 1996. We also consent to
the reference to our Firm under the caption "Item 3 -- Incorporation of
Documents by Reference."
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Minneapolis, Minnesota
June 12, 1997
