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As filed with the Securities and Exchange Commission on August 31, 2000
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CHOLESTECH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CALIFORNIA 94-3065493
(STATE OF INCORPORATION) (I.R.S. EMPLOYER IDENTIFICATION NUMBER)
3347 INVESTMENT BOULEVARD
HAYWARD, CALIFORNIA 94545
(ADDRESS, INCLUDING ZIP CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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2000 STOCK INCENTIVE PROGRAM
1992 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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ANDREA J. TILLER
VICE PRESIDENT OF FINANCE AND
CHIEF FINANCIAL OFFICER
CHOLESTECH CORPORATION
3347 INVESTMENT BOULEVARD
HAYWARD, CALIFORNIA 94545
(510) 732-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
------------------------------------
Copy to:
CHRIS F. FENNELL, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CALIFORNIA 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS AMOUNT OFFERING AGGREGATE AMOUNT OF
OF SECURITIES TO TO BE PRICE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE PRICE FEE
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<S> <C> <C> <C> <C>
Common Stock, no par value(1) 790,000 $7.06(2) $5,577,400 $1,472.44
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(1) Includes Preferred Share Purchase Rights which, prior to the
occurrence of certain events, will not be exercisable or
evidenced separately from the Common Stock.
(2) Calculated in accordance with Rule 457(c) solely for the purpose
of computing the amount of the registration fee based upon the
average of the high and low prices for the Common Stock as
reported on the Nasdaq National Market on August 30, 2000.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Cholestech Corporation (the "Company" or "Registrant") hereby
incorporates by reference in this registration statement the following
documents:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 2000 filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000 filed pursuant to Section 13(a) of the Exchange Act.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A as filed with the Securities and
Exchange Commission (the "Commission") on May 4, 1992 pursuant to Section 12(b)
of the 1934 Act and any amendments or reports filed with the Commission for the
purpose of updating such description.
(d) The description of the Company's Preferred Stock Purchase Rights
contained in the Company's Registration Statement on Form 8-A as filed with the
Commission on January 27, 1997 pursuant to Section 12(b) of the Exchange Act.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment to this registration statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
As permitted by Section 204(a) of the California General Corporation
Law, the Registrant's Articles of Incorporation eliminate a director's personal
liability for monetary damages to the Registrant and its shareholders arising
from a breach or alleged breach of the director's fiduciary duty, except for
liability arising under Sections 310 and 316 of the California General
Corporation Law or liability for (i) acts or omissions that involve intentional
misconduct or knowing and culpable violation of law, (ii) acts or omissions that
a director believes to be contrary to the best interests of the Registrant or
its shareholders or that involve the absence of
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good faith on the part of the director, (iii) any transaction from which a
director derived an improper personal benefit, (iv) acts or omissions that show
a reckless disregard for the director's duty to the Registrant or its
shareholders in circumstances in which the director was aware, or should have
been aware, in the ordinary course of performing a director's duties, of a risk
of serious injury to the Registrant or its shareholders and (v) acts or
omissions that constitute an unexcused pattern of inattention that amounts to an
abdication of the director's duty to the Registrant or its shareholders. This
provision does not eliminate the directors' duty of care, and in appropriate
circumstances equitable remedies such as an injunction or other forms of
non-monetary relief would remain available under California law.
Sections 204(a) and 317 of the California General Corporation Law
authorize a corporation to indemnify its directors, officers, employees and
other agents in terms sufficiently broad to permit indemnification (including
reimbursement for expenses) under certain circumstances for liabilities arising
under the Securities Act of 1933, as amended (the "Securities Act"). The
Registrant's Articles of Incorporation and Bylaws contain provisions covering
indemnification of corporate directors, officers and other agents against
certain liabilities and expenses incurred as a result of proceedings involving
such persons in their capacities as directors, officers, employees or agents,
including proceedings under the Securities Act or the Securities Exchange Act of
1934, as amended. The Registrant has entered into Indemnification Agreements
with its directors and executive officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering. 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 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;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933 (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.
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(b) Filing incorporating subsequent Exchange Act documents by reference.
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.
(c) Request for acceleration of effective date or filing of registration
statement on Form S-8.
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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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 Hayward, State of California, on August 31, 2000.
CHOLESTECH CORPORATION
By: /s/ WARREN E. PINCKERT II
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Warren E. Pinckert II
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each such person whose
signature appears below constitutes and appoints Warren E. Pinckert II and
Andrea J. Tiller, and each of them, as his or her true and lawful
attorney-in-fact, with full power of substitution, for him or her in any and all
capacities, to sign any amendments (including post-effective amendments) to this
Registration Statement on Form S-8, and to file the same, with all exhibits
thereto, and other 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 connection therewith, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or
their or his 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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/s/ WARREN E. PINCKERT II President, Chief Executive Officer and August 31, 2000
------------------------------ Director (Principal Executive Officer)
Warren E. Pinckert II
/s/ ANDREA J. TILLER Vice President of Finance and Chief August 31, 2000
------------------------------ Financial Officer (Principal Financial
Andrea J. Tiller and Accounting Officer)
/s/ MOLLY J. COYE, M.D. Director August 31, 2000
------------------------------
Molly J. Coye, M.D.
/s/ JOHN L. CASTELLO Director August 31, 2000
------------------------------
John L. Castello
/s/ JOHN H. LANDON Director August 31, 2000
------------------------------
John H. Landon
/s/ DR. HARVEY S. SADOW Chairman of the Board August 31, 2000
------------------------------
Dr. Harvey S. Sadow
/s/ LARRY Y. WILSON Director August 31, 2000
------------------------------
Larry Y. Wilson
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
Cholestech Corporation
August 31, 2000
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INDEX TO EXHIBITS
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Exhibit
Number Exhibit
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4.1 1992 Employee Stock Purchase Plan, as amended, and form
of agreement thereunder
4.2 2000 Stock Incentive Program
5.1 Opinion of counsel as to legality of securities being
registered
23.1 Consent of Independent Accountants
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-5)
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