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As filed with the Securities and Exchange Commission on March 27, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
under
the Securities Act of 1933
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FOCAL, INC.
(Exact name of issuer as specified in its charter)
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<S> <C>
Delaware 94-3142791
(State of incorporation) (I.R.S. Employer Identification No.)
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4 Maguire Road
Lexington, MA 02173
(address of principal executive offices)
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1992 INCENTIVE STOCK PLAN
1997 DIRECTOR OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full titles of the plans)
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David M. Clapper
Chief Executive Officer and President
FOCAL, INC.
4 Maguire Road
Lexington, MA 02173
(781) 280-7800
(Name, address, and telephone number, including area code, of agent for service)
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Copy to:
Christopher D. Mitchell, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Per Offering Registration
Registered (1) Registered Share Price Fee
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<S> <C> <C> <C> <C>
1992 Incentive Stock Plan
Common Stock,
$.01 par value, shares outstanding 497,267 shares (2) $ 4.42 (3) $ 2,197,920.14(4) $ 648.39
$.01 par value, shares available 507,104 shares (5) $17.375 (6) $8,810,932.00(7) $ 2,555.17
1997 Director Option Plan
Common Stock,
$.01 par value, shares available 150,000 shares (5) $17.375 (6) $2,606,250.00(7) $755.82
1997 Employee Stock Purchase Plan
Common Stock,
$.01 par value, shares available 200,000 shares (8) $14.77 (9) $2,954,000.00(7) $856.66
Total 1,354,371 shares $16,569,102.14 $4,816.04
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(1) In addition pursuant to Rule 416(c) under the Securities Act of 1933 ( the
"Securities Act"), this Registration Statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plans described herein. For the sole purpose of
calculating the registration fee, the number of shares to be registered
under this Registration Statement has been broken down into four subtotals.
(2) This subtotal represents the number of shares issuable upon exercise of
outstanding options as of December 31, 1997 (options that have been granted
as of such date).
(3) Calculated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of determining the total registration fee. Calculation
based on the weighted average exercise price (rounded to the nearest cent)
at which the options outstanding whose exercise will result in the issuance
of the shares being registered may be exercised.
(4) Calculated in accordance with Rule 457(h) under the Securities Act based on
the aggregate exercise price of all outstanding options as of December 31,
1997.
(5) This subtotal represents the number of shares issuable upon exercise of
options that are available for grant as of December 31, 1997, but were not
granted as of such date.
(6) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the total registration fee. The calculation
is based upon the closing price of the Common Stock as reported on the
Nasdaq National Market on March 24, 1998, because the price at which the
options to be granted in the future may be exercised is not currently
determinable.
(7) Calculated in accordance with Rule 457(h) under the Securities Act based on
the aggregate exercise price for options available for grant.
(8) This subtotal represents the number of shares authorized to be issued under
the 1997 Employee Stock Purchase Plan.
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(9) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the total registration fee. Calculation
based upon 85% (see explanation in following sentence) of the closing price
of the Common Stock as reported on the Nasdaq National Market on March 24,
1998 because the price at which the options to be granted in the future may
be exercised is not currently determinable. The purchase price of a share
of Common Stock pursuant to the 1997 Employee Stock Purchase Plan, which
plan is incorporated by reference herein, is equal to 85% of the Fair
Market Value of a share of Common Stock on either the first day of the
relevant offering period or the last day of the relevant purchase period,
whichever is lower.
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<PAGE>
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by References
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by Focal, Inc. (the
"Company") with the Securities and Exchange Commission:
(a) The audited financial statements for the Registrant's fiscal year ended
December 31, 1997 contained in the Company's Report on Form 10-K for the
year ended December 31, 1997, filed pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
(b) The description of the Common Stock of the Registrant that is contained in
the Registration Statement on Form 8-A filed pursuant to Section 12 of the
Exchange Act on October 21, 1997.
(d) All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act subsequent to the filing of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in the Registration Statement and to be 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.
Certain members of Wilson Sonsini Goodrich and Rosati, Professional
Corporation beneficially own 650 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "a corporation shall have power to indemnify any
person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation) by reason of the fact that he is or was a director,
officer, employee or agent of the corporation, partnership, joint venture, trust
or other enterprise, against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding 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 corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful." With respect to
derivative actions, Section 145(b) of the DGCL provides in relevant part that
"[a] corporation shall have power to indemnify any person who was or is a party
or is threatened to be made a party to any threatened, pending or completed
action or suit by or in the right of the corporation to procure a judgment in
its favor . . . [by reason of his service in one of the capacities specified in
the preceding sentence] against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
such action or suit 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 corporation and
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except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of Chancery or the
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper."
The Company's Certificate of Incorporation provides that to the fullest
extent permitted by the DGCL, no director of the Company shall be personally
liable to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director. The Certificate of Incorporation also provides
that no amendment or repeal of such provision shall apply to or have any effect
on the right to indemnification permitted thereunder with respect to claims
arising from acts or omissions occurring in whole or in part before the
effective date of such amendment or repeal whether asserted before or after such
amendment or repeal.
The Company's Bylaws provide that the Company shall indemnify to the full
extent authorized by law each of its directors, officers, employees and other
agents against expenses actually and reasonably incurred in connection with any
proceeding arising by reason of the fact that such person is or was an agent of
the corporation.
The Company has entered into indemnification agreements with its directors
and executive officers, in addition to indemnification provided for in the
Company's Bylaws, and intends to enter into indemnification agreements with any
new directors and executive officers in the future.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
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Exhibit
Number Document
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation,
as to the legality of securities being registered.
23.1 Consent of Ernst & Young LLP, Independent Auditors.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation
(contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page II-4).
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II-2
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Item 9. Undertakings.
A. The Company 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.
B. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the Corporation Law, the Company's Certificate of
Incorporation, the Company's Bylaws or the Company's indemnification agreements,
the Company has been informed 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 Company
of expenses incurred or paid by a director, officer or controlling person of the
Company 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 Company will, unless in the opinion
of its counsel the question has already 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.
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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 Lexington, State of Massachusetts,
on March 27, 1998.
FOCAL, INC.
By: /s/ David M. Clapper
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David M. Clapper,
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints David M. Clapper and W. Bradford Smith,
jointly and severally, as his or her attorneys-in-fact, with full power of
substitution in each, for him or her in any and all capacities to sign any
amendments to this Registration Statement on Form S-8, and to file the same,
with exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
each of said attorneys-in-fact, or his substitutes, may do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
Registration Statement on Form S-8 has been signed below by the following
persons on behalf of the Registrant and in the capacities and on the date
indicated.
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Signature Title Date
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<S> <C> <C>
/s/ David M. Clapper President, Chief Executive Officer and March 27, 1998
------------------------------- Director (Principal Executive Officer)
(David M. Clapper)
/s/ W. Bradford Smith Vice President, Finance and Chief March 27, 1998
------------------------------- Financial Officer (Principal
(W. Bradford Smith) Financial and Accounting Officer)
/s/ Henry Brem Director March 27, 1998
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(Henry Brem, M.D.)
/s/ Janet Effland Director March 27, 1998
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(Janet Effland)
/s/ Robert Langer Director March 27, 1998
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(Robert Langer, Ph.D.)
/s/ Mark J. Levin Director March 27, 1998
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(Mark J. Levin)
/s/ Michael J. Levinthal Director March 27, 1998
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(Michael J. Levinthal)
II-4
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/s/ Fred E. Silverstein Director March 27, 1998
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(Fred E. Silverstein, M.D.)
/s/ Jesse I. Treu Director March 27, 1998
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(Jesse I. Treu, Ph.D.)
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II-5
<PAGE>
March 27, 1998
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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EXHIBITS
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Registration Statement on Form S-8
FOCAL, INC.
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INDEX TO EXHIBITS
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Exhibit Description
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being
registered
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto)
24.1 Power of Attorney (see Page II-4)
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<PAGE>
Exhibit 5.1
March 25, 1998
Focal, Inc.
4 Maguire Road
Lexington, MA 02173
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
you with the Securities and Exchange Commission on March 27, 1998 (the
"Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of 1,354,371 shares of your Common Stock,
par value $0.01 per share (the "Shares"), (i) 497,267 shares of which are
currently subject to options outstanding under the 1992 Incentive Stock Plan,
(ii) 507,104 shares of which are available for issuance under the 1992
Incentive Stock Plan, (iii) 150,000 shares of which are available for
issuance under the 1997 Director Option Plan, and (iv) 200,000 shares of
which are available for issuance under the 1997 Employee Stock Purchase Plan
(collectively, the "Plans"). As your 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 issuance and
sale of the Shares pursuant to the Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each grant under the Plans,
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 and any amendments thereto.
Very truly yours,
WILSON SONSINI GOODRICH & ROSATI
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1992 Incentive Stock Option Plan, the 1997
Director Option Plan and the 1997 Employee Stock Purchase Plan of Focal, Inc.
of our report dated February 2, 1998, with respect to the financial statements
of Focal, Inc. included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Boston, Massachusetts
March 25, 1998
