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As filed with the Securities and Exchange Commission on February 4, 1999
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
________________
GENERAL SURGICAL INNOVATIONS, INC.
(Exact name of Registrant as specified in its charter)
CALIFORNIA 94-3160456
(State of incorporation) (I.R.S. Employer Identification No.)
10460 BUBB ROAD
CUPERTINO, CALIFORNIA 95014
(Address of principal executive offices)
_______________________
1992 STOCK OPTION PLAN
WRITTEN COMPENSATION AGREEMENT DATED APRIL 6, 1998
(Full title of the Plan)
_______________________
GREGORY D. CASCIARO
CHIEF EXECUTIVE OFFICER
GENERAL SURGICAL INNOVATIONS, INC.
10460 BUBB ROAD
CUPERTINO, CALIFORNIA 95014
(408) 863-2500
(Name, address and telephone number, including area code, of agent for service)
_______________________
Copy to:
Maribeth Younger
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
(650) 854-4488
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<TABLE>
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed Amount
Maximum Maximum Maximum of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
1992 STOCK OPTION PLAN
Common Stock,
$0.001 par value. . . . 537,678 Shares $3.25(3) $1,747,454
(unissued)
WRITTEN COMPENSATION AGREEMENT
DATED APRIL 6, 1998
Common Stock,
$0.001 par value. . . . 25,000 $4.00(2) $ 100,000
TOTAL 562,678 Shares(4) $1,847,454 $ 514
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_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the plan being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
registration fee. Computation based on the weighted average per share
exercise price (rounded to nearest cent) of outstanding options under
the referenced plan, the shares issuable under which are registered
hereby.
(3) Estimated in accordance with Rule 457(h) and 457(c) under the Securities
Act solely for the purpose of calculating the registration fee. The
computation with respect to unissued options is based upon the average
of the high and low sale prices of the Common Stock as reported on the
Nasdaq National Market on January 29, 1999.
(4) This total represents (A) a 537,678 share increase in the shares reserved
for issuance under the 1992 Stock Option Plan (the "Plan"), which
increase was approved by the Registrant's Board of Directors at a meeting
on September 29, 1998 and by the Registrant's shareholders at a meeting
on November 19, 1998 (of the 537,678 shares being registered hereunder,
no shares are subject to outstanding options and 537,678 are available
for issuance) and (B) a 25,000 option grant for the purchase of shares of
Common Stock outside of the Plan, which grant was approved by the
Registrant's Board of Directors on April 6, 1998.
An additional 1,616,990 shares were registered for issuance under the Plan
pursuant to a previous registration statement on Form S-8 filed by the
Registrant with the Commission on August 16, 1996, and an additional
900,000 shares were registered for issuance under the Plan pursuant to a
previous registration statement on Form S-8 filed by the Registrant with
the Commission on January 26, 1998, as amended June 30, 1998.
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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 hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended June 30, 1998, filed on September 28, 1998, pursuant to Section 13
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
which contains audited financial statements for the Registrant's latest
fiscal year for which such statements have been filed.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998, filed on November 16, 1998 pursuant to Section 13
of the Exchange Act.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission
under Section 12 of the Exchange Act on May 3, 1996, 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 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 part
hereof from the date of filing such documents.
Item 4. DESCRIPTION OF SECURITIES. Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the shares will be passed upon by
Venture Law Group, a Professional Corporation, Menlo Park, California. Mark
B. Weeks, a director of Venture Law Group, is the Secretary of the Registrant.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Articles of Incorporation eliminate the liability of a
director for monetary damages to the fullest extent permissible under
California law. In addition, the Articles of Incorporation authorize the
Registrant to indemnify agents in excess of the indemnification otherwise
permitted by Section 317 of the California Corporations Code (the "Code"),
subject only to the limits in Section 204 of the Code, with respect to
actions for breach of duty to the Registrant and its shareholders. The
Bylaws of the Registrant provide that the Registrant shall to the maximum
extent permitted by the Code indemnify directors and officers (and permits
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the Registrant to indemnify other employees and agents) against expenses,
judgments and other amounts reasonably incurred in connection with a
proceeding because such person was or is an agent of the Registrant. The
Bylaws also provide that the Registrant shall advance certain expenses in
connection with indemnifying these persons, that the indemnification
provision is not exclusive and that the Registrant may purchase directors and
officers insurance. In addition, the Registrant has entered into
indemnification agreements with certain of its officers and directors.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
Item 8. EXHIBITS.
Exhibit
Number
- --------
4.2(1) Shareholder Rights Plan.
5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional
Corporation (included in Exhibit 5.1).
23.2 Consent of Independent Accountants.
24.1 Powers of Attorney (see p. 7).
_______________
(1) Incorporated by reference from exhibits filed in response to Item 2,
"Exhibits," of the Company's Registration Statement on Form 8-A
(Registration No. 000-28448), filed with the Commission on May 13, 1997.
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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 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, 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 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.
Insofar as the 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 a successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered hereunder, 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 of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant, GENERAL SURGICAL INNOVATIONS, INC., a corporation organized and
existing under the laws of the State of California, 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 Cupertino, State of California, on this 29th day of January, 1999.
GENERAL SURGICAL INNOVATIONS, INC.
By: /s/ Gregory D. Casciaro
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Gregory D. Casciaro
Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gregory D. Casciaro and Stephen J.
Bonelli, jointly and severally, his or her attorneys-in-fact and agents, each
with the power of substitution and resubstitution, for him or her and in his
or her name, place or stead, in any and all capacities, to sign any
amendments to this Registration Statement on Form S-8, and to file such
amendments, together with exhibits and other documents in connection
therewith, with the Securities and Exchange Commission, granting to each
attorney-in-fact and agent, 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 as he or she might or could do in person, and ratifying
and confirming all that the attorney-in-facts and agents, or his or her
substitute or substitutes, may 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
<S> <C> <C>
/s/ Roderick A. Young
- ----------------------------- Chairman of the Board of Directors January 29, 1999
Roderick A. Young
/s/ Gregory D. Casciaro President, Chief Executive Officer
- ----------------------------- and Director (Principal Executive January 29, 1999
Gregory D. Casciaro Officer)
/s/ Stephen J. Bonelli Vice President of Finance and
- ----------------------------- Administration and Chief Financial January 29, 1999
Stephen J. Bonelli Officer (Principal Financial and
Accounting Officer)
/s/ Thomas J. Fogarty, M.D.
- ----------------------------- Director January 29, 1999
Thomas J. Fogarty, M.D.
- ----------------------------- Director January 29, 1999
Dave Chonette
/s/ Paul Goeld
- ----------------------------- Director January 29, 1999
Paul Goeld
/s/ James Sulat
- ----------------------------- Director January 29, 1999
James Sulat
- ----------------------------- Director January 29, 1999
Mark A. Wan
</TABLE>
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INDEX TO EXHIBITS
EXHIBIT
NUMBER
4.2(1) Shareholder Rights Plan
5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation
(included in Exhibit 5.1).
23.2 Consent of Independent Accountants
24.1 Powers of Attorney (see p. 7).
_______________
(1) Incorporated by reference from exhibits filed in response to Item 2,
"Exhibits," of the Company's Registration Statement on Form 8-A
(Registration No. 000-28448), filed with the Commission on May 13, 1997.
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EXHIBIT 5.1
[LETTERHEAD]
February 3, 1999
General Surgical Innovations, Inc.
10460 Bubb Road
Cupertino, California 95014
REGISTRATION STATEMENT ON FORM S-8
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Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "REGISTRATION
STATEMENT") to be filed by you with the Securities and Exchange Commission
(the "COMMISSION") on or about February 3, 1999 in connection with the
registration under the Securities Act of 1933, as amended, of a total of
537,678 shares of your Common Stock (the "SHARES") reserved for issuance
under the General Surgical Innovations, Inc. 1992 Stock Option Plan (the
"Plan") and 25,000 shares issuable pursuant to the Written Compensation
Agreement dated as of April 6, 1998 between the Company and Gregory D.
Casciaro, (the "Agreement"). As your legal counsel in connection with this
transaction, we have examined the proceedings taken and are familiar with the
proceedings proposed to be taken by you in connection with the sale and
issuance of the Shares under the Plan and the Agreement.
It is our opinion that, when issued and sold in the manner referred to in
the Plan and pursuant to the respective agreement which accompanies each
grant under the Plan, and within the Agreement, the Shares will be legally
and validly issued, fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in
the Registration Statement, including the prospectus constituting a part
thereof, and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
General Surgical Innovations, Inc. on Form S-8 of our reports dated July 29,
1998, on our audits of the financial statements and financial statement
schedule of General Surgical Innovations, Inc. as of June 30, 1998 and 1997,
and for each of the three years in the period ended June 30, 1998, which
report is included in the Annual Report on Form 10-K for the year ended June
30, 1998.
PricewaterhouseCoopers LLP
San Jose, California
January 28, 1999
