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As filed with the Securities and Exchange Commission on August 9, 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
FOCAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 94-3142791
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
FOUR MAGUIRE ROAD, LEXINGTON, MASSACHUSETTS 02421
(Address of Principal Executive Offices) (Zip Code)
1999 STOCK INCENTIVE PLAN
(Full Title of the Plan)
DAVID M. CLAPPER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
FOCAL, INC.
FOUR MAGUIRE ROAD
LEXINGTON, MASSACHUSETTS 02421
(Name and Address of Agent for Service)
(781) 280-7800
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Each Class Maximum Maximum
of Securities to be Amount to be Offering Price Per Aggregate Amount of
Registered Registered Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock
$.01 par value per
share 875,000 shares $3.75(1) $3,281,250(1) $912.19(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
common stock as reported on the Nasdaq National Market on August 4,
1999.
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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 1999 Stock Incentive Plan of Focal, Inc. pursuant
to Rule 428(b)(1) of the Securities Act of 1933, as amended.
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, and in accordance therewith files reports, proxy statements
and other information with the Securities and Exchange Commission. The following
documents, which are filed with the Securities and Exchange Commission, are
incorporated in this registration statement by reference:
(a) The registrant's Report on Form 10-K for the year ended December
31, 1998, filed under the Exchange Act.
(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 report referred to
in (a) above.
(c) The description of the common stock of the registrant, par value
$.01 per share, contained in the registrant's registration statement on Form 8-A
dated October 21, 1997 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 the 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 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.
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Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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.
The registrant's certificate of incorporation provides that the
registrant shall indemnify each of its directors and officers in every situation
where, under Section 145 of the Delaware General Corporation Law statute, it is
permitted or empowered to make such indemnification. The registrant may, in the
sole discretion of the board of directors of the registrant, indemnify any other
person who may be indemnified pursuant to Section 145 to the extent it deems
advisable. If the Delaware General Corporation Law statute is amended to further
eliminate or limit the liability of a director, then a director of the
registrant shall not be liable to the fullest extent permitted by the amended
Delaware General Corporation Law statute.
The registrant's bylaws provide that the registrant shall indemnify, to
the fullest extent authorized by the Delaware General Corporation Law statute,
each of its directors, officers, employees and other agents against expenses
(including attorneys' fees), judgments, fines, and amounts paid in settlement
actually and reasonably incurred in connection with any threatened, pending or
completed action, suit or proceeding arising by reason of the fact that such
person is or was a director or officer of the registrant. The registrant is
required to indemnify a director or officer in connection with an action, suit,
or proceeding (or part thereof) initiated by such director or officer only if
the initiation of such action, suit, or proceeding (or part thereof) by the
director or officer was authorized by the board of directors of the registrant.
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The registrant has entered into indemnification agreements with its
directors and executive officers, in addition to indemnification provided for in
the registrant'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.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The 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.
(b) The 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) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant
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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 the Town of Lexington, Commonwealth of Massachusetts, on the 6th
day of August, 1999.
FOCAL, INC.
By: /s/ David M. Clapper
-----------------------------
David M. Clapper
President and
Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Focal, Inc., hereby severally
constitute David M. Clapper and Steven D. Singer, 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 behalf in our capacities as officers and directors to enable Focal, Inc. to
comply with all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by said attorneys,
or any of them, to said registration statement and any and all amendments
thereto.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities
indicated below and on the 6th day of August, 1999.
Signature Title
- --------- -----
/s/ David M. Clapper President and Chief Executive Officer
- ---------------------------------- (Principal Executive, Financial and
David M. Clapper Accounting Officer)
/s/ Henry Brem, M.D. Director
- ----------------------------------
Henry Brem, M.D.
/s/ Janet Effland Director
- ----------------------------------
Janet Effland
/s/ Jesse I. Treu Director
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Jesse I. Treu
/s/ Mark J. Levin Director
- ----------------------------------
Mark J. Levin
/s/ Robert Langer, Ph.D. Director
- ----------------------------------
Robert Langer, Ph.D.
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INDEX TO EXHIBITS
Number Description
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4.1(1) Restated Certificate of
Incorporation of the registrant
4.2(1) Bylaws of the registrant, as amended
4.2(1) Specimen stock certificate of common stock
of the registrant
4.4(1) Preferred Shares Rights Agreement between the registrant and
Norwest Bank Minnesota, N.A.
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 Ernst & Young LLP, independent
auditors
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. 333-38379), and incorporated herein by reference.
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Exhibit 5.1
HALE AND DORR LLP
Counsellors at Law
60 State Street, Boston, Massachusetts 02109
617-526-6000 - fax 617-526-5000
August 9, 1999
Focal, Inc.
Four Maguire Road
Lexington, Massachusetts 02421
Re: 1999 Stock Incentive Plan
-------------------------
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 875,000 shares of Common Stock, $0.01 par value per share
(the "Shares"), of Focal, Inc., a Delaware corporation (the "Company"), issuable
under the Company's 1999 Stock Incentive Plan (the "Plan").
We have examined the Certificate of Incorporation of the Company and
the Bylaws 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
appropriate for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the
legal capacity of individual signatories, 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 copies, and the
authenticity of the originals of any such documents.
We assume that the appropriate action will be taken, prior to the offer
and sale of the shares in accordance with the Plan, 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.
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.
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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 Plan, as described in the Registration Statement, and such
Shares, when issued in accordance with the terms of the Plan, will be validly
issued, fully paid and nonassessable.
This opinion is based upon currently existing statutes, rules,
regulations and judicial decisions, and we disclaim any obligation to advise you
of any change in any of these sources of law or subsequent legal or factual
developments which might affect any matters or opinions set forth herein. This
opinion is solely for your benefit in connection with the Registration Statement
and may not be quoted or relied upon by any other person or used for any other
purpose, without our prior written consent.
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
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HALE AND DORR LLP
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Exhibit 23.2
CONSENT OF THE INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration
Statement (Form S-8) pertaining to the 1999 Stock Incentive Plan of Focal,
Inc. of our report dated January 26, 1999, except for Note 11, as to which
the date is February 24, 1999, with respect to the financial statements of
Focal, Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended December 31, 1998, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 4, 1999
