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As filed with the Securities and Exchange Commission on May 16, 2000
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
ASPECT MEDICAL SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 04-2985553
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
141 NEEDHAM STREET, NEWTON, MASSACHUSETTS 02464
(Address of Principal Executive Offices) (Zip Code)
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
1998 STOCK INCENTIVE PLAN
1998 DIRECTOR STOCK OPTION PLAN
RESTATED 1999 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plan)
NASSIB G. CHAMOUN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ASPECT MEDICAL SYSTEMS, INC.
141 NEEDHAM STREET
NEWTON, MASSACHUSETTS 02464
(Name and Address of Agent for Service)
(617) 559-7000
(Telephone number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Title of Each Class Proposed Maximum Proposed Maximum
of Securities to Amount to be Offering Price Aggregate Offering Amount of
be Registered Registered Per Share Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $0.01
par value per share 6,860,000 shares $45.7815(1) $314,061,090(1) $82,913(1)
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, and based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on May
15, 2000.
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required by Part I is included in documents sent or given
to participants in the Amended and Restated 1991 Stock Option Plan, the 1998
Stock Incentive Plan, the 1998 Director Stock Option Plan and the Restated 1999
Employee Stock Purchase Plan of Aspect Medical Systems, Inc. pursuant to Rule
428(b)(1) of the Securities Act of 1933, as amended (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:
(a) 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.
(b) 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 prospectus referred
to in (a) above.
(c) The description of the common stock of the registrant, $0.01 par value
per share (the "Common Stock"), contained in the registrant's registration
statement on Form 8-A and 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 the 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.
Hale and Dorr LLP has opined as to the legality of the securities being
offered by this registration statement.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article EIGHTH of the registrant's Restated Certificate of Incorporation
provides that no director of the registrant shall be personally liable for any
monetary damages for any breach of fiduciary duty as a director, except to the
extent that the Delaware General Corporation Law statute prohibits the
elimination or limitation of liability of directors for breach of fiduciary
duty.
Article NINTH of the registrant's Restated Certificate of Incorporation
provides that a director or officer of the registrant (a) shall be indemnified
by the registrant against all expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement incurred in connection with any litigation
or other legal proceeding (other than an action by or in the right of the
registrant) brought against him by virtue of his position as a director or
officer of the registrant if he acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
registrant, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the registrant brought against him by virtue of his position as a
director or officer of the registrant if he acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the best interests of the
registrant, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the registrant
notice of the action for which indemnity is sought and the registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the registrant's Restated Certificate of Incorporation
further provides that the indemnification provided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law statute is
amended to expand the indemnification permitted to directors or officers the
registrant must indemnify those persons to the full extent permitted by such law
as so amended.
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Section 145 of the Delaware General Corporation Law statute provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the corporation, no
indemnification shall be made with respect to any matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent that the adjudicating court determines that such indemnification is
proper under the circumstances.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
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; and
(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
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 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.
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(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 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 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 Securities and Exchange 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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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 Newton, Massachusetts, on this 9th day of May, 2000.
ASPECT MEDICAL SYSTEMS, INC.
By: /s/ J. Neal Armstrong
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J. Neal Armstrong
Vice President and Chief Financial
Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Aspect Medical Systems, Inc.,
hereby severally constitute and appoint Nassib G. Chamoun, J. Breckenridge Eagle
and J. Neal Armstrong, 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 on our behalf in
our capacities as officers and directors to enable Aspect Medical Systems, Inc.
to comply with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of
them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below 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/ Nassib G. Chamoun President, Chief Executive May 9, 2000
- ----------------------------- Officer and Director (Principal
Nassib G. Chamoun Executive Officer)
/s/ J. Breckenridge Eagle Chairman of the Board of May 9, 2000
- ----------------------------- Directors
J. Breckenridge Eagle
/s/ J. Neal Armstrong Vice President and Chief May 9, 2000
- ----------------------------- Financial Officer (Principal
J. Neal Armstrong Financial and Accounting Officer)
/s/ Boudewijn L.P.M. Bollen Director May 9, 2000
- -----------------------------
Boudewijn L.P.M. Bollen
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SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Stephen E. Coit Director May 9, 2000
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Stephen E. Coit
/s/ Edwin M. Kania Director May 9, 2000
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Edwin M. Kania
/s/ Lester J. Lloyd Director May 9, 2000
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Lester J. Lloyd
/s/ Terrance McGuire Director May 9, 2000
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Terrance McGuire
/s/ Donald Stanski Director May 9, 2000
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Donald Stanski
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INDEX TO EXHIBITS
NUMBER DESCRIPTION
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3.1(1) Restated Certificate of Incorporation of the Registrant
3.2(1) Amended and Restated By-Laws of the Registrant
4.1(1) Specimen stock certificate of common stock of the Registrant
5.1 Opinion of Hale and Dorr LLP, counsel to the Registrant
23.1 Consent of Hale and Dorr LLP
(included in Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Power of attorney (included in the signature pages of this
registration statement)
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(1) Previously filed with the Securities and Exchange Commission as an Exhibit
to the Registrant's Registration Statement on Form S-1, as amended (File
No. 333-86295) and incorporated herein by reference.
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EXHIBIT 5.1
HALE AND DORR LLP
COUNSELLORS AT LAW
www.haledorr.com
60 STATE STREET O BOSTON, MA 02109
617-526-6000 O FAX 617-526-5000
May 16, 2000
Aspect Medical Systems, Inc.
141 Needham Street
Newton, Massachusetts 02464
Re: Amended and Restated 1991 Stock Option Plan
1998 Stock Incentive Plan
1998 Director Stock Option Plan
Restated 1999 Employee Stock Purchase Plan
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Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission relating to an aggregate of 6,860,000 shares of common stock, $0.01
par value per share (the "Shares"), of Aspect Medical Systems, Inc., a Delaware
corporation (the "Company"), issuable under the Company's Amended and Restated
1991 Stock Option Plan, 1998 Stock Incentive Plan, 1998 Director Stock Option
Plan and Restated 1999 Employee Stock Purchase Plan (collectively, the "Plans").
We have examined the Certificate of Incorporation of the Company and the
By-Laws of the Company, each as amended and restated to date, and originals, or
copies certified to our satisfaction, of all pertinent records of the meetings
of the directors and stockholders of the Company, the Registration Statement and
such other documents relating to the Company as we have deemed material for the
purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals, the conformity to original documents of all documents submitted
to us as certified, photostatic or facsimile copies, and the authenticity of the
originals of any such documents.
We assume that the appropriate action will be taken, prior the offer and
sale of the shares in accordance with the Plans, to register and qualify the
shares for sale under all applicable state securities or "blue sky" laws.
We express no opinion herein as to the laws of any state or jurisdiction
other than the state laws of The Commonwealth of Massachusetts, the Delaware
General Corporation Law statute and the federal laws of the United States of
America.
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BOSTON WASHINGTON, DC NEW YORK RESTON LONDON*
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Hale and Dorr LLP Includes Professional Corporations *an independent joint venture law firm
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Aspect Medical Systems, Inc.
May 16, 2000
Page 2
It is understood that this opinion is to be used only in connection with
the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth
herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Company has duly
authorized for issuance the Shares covered by the Registration Statement to be
issued under the Plans, as described in the Registration Statement, and such
Shares, when issued in accordance with the terms of the Plans, will be legally
issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission in connection with the Registration Statement.
Very truly yours,
/s/ Hale and Dorr LLP
HALE AND DORR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 20, 2000
included in Aspect Medical Systems, Inc.'s Registration Statement File No.
333-86295 on Form S-1, which was declared effective by the Securities and
Exchange Commission on January 27, 2000.
/s/ Arthur Andersen LLP
Boston, Massachusetts
May 12, 2000
