<PAGE>
As filed with the Securities and Exchange Commission on June 22, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------------
SYMPHONIX DEVICES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------------
DELAWARE 77-0376250
-------------------- ----------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
2331 ZANKER ROAD
SAN JOSE, CA 95131-1109
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
----------------------
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
1997 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
----------------------
HARRY S. ROBBINS
CHIEF EXECUTIVE OFFICER
SYMPHONIX DEVICES, INC.
2331 ZANKER ROAD
SAN JOSE, CA 95131-1109
(408) 232-0710
(NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
----------------------
Copy to:
JOHN T. SHERIDAN, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
----------------------
================================================================================
CALCULATION OF REGISTRATION FEE
================================================================================
<TABLE>
<CAPTION>
PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE PER OFFERING REGISTRATION
REGISTERED REGISTERED SHARE PRICE FEE
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 528,032 shares(1) $ 1.29(2) $ 681,162(3) $ 201
$0.001 par value
Common Stock 430,928 shares(4) $ 12.00(5) $ 5,171,136 $ 1,526
$0.001 par value
Common Stock, 75,000 shares(6) $ 10.20 $ 765,000 $ 226
$0.001 par value
TOTAL 1,033,960 shares $ 1,953
========================================================================================================
</TABLE>
(1) 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 three subtotals. This subtotal represents the sum of shares
issuable upon exercise of presently outstanding options (options that have
been granted as of the date of this Registration Statement) issued under the
Registrant's Amended and Restated 1994 Stock Option Plan (the "Stock Plan").
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, solely for the purpose of calculating the total registration fee.
Computation 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.
(3) Calculated in accordance with Rule 457(h) based on the aggregate exercise
price for all presently outstanding options described in note 1 above.
(4) This subtotal represents the sum of shares issuable upon exercise of options
that have not yet been granted under the Stock Plan as of the date of this
Registration Statement.
(5) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon the average
of the high and low prices of the Registrant's Common Stock as reported by
The Nasdaq Stock Market on June 16, 1998.
(6) This subtotal represents the number of shares authorized to be issued under
the Registrant's 1997 Employee Stock Purchase Plan (the "Purchase Plan").
(7) Estimated in accordance with Rule 457(h) solely for the purpose of
calculating the total registration fee. Computation based upon 85% (see
explanation in following sentence) of the average of the high and low prices
of the Common Stock as reported by The Nasdaq Stock Market on June 16, 1998.
Pursuant to the Purchase Plan, which plan is incorporated by reference
herein, the purchase price of a share of Common Stock shall be an amount
equal to 85% of the fair market value of a share of Common Stock on the
Enrollment Date or the Exercise Date (as defined in such plan), whichever is
lower.
ii
<PAGE>
SYMPHONIX DEVICES, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
---------------------------------------
There are hereby incorporated by reference in this Registration Statement
the following documents and information heretofore filed by Symphonix Devices,
Inc. (the "Registrant") with the Securities and Exchange Commission:
(1) The Registrant's Registration Statement on Form S-1 (file no. 333-
40339) under the Securities Act of 1933, as amended (the "Securities Act"), and
as declared effective on February 13, 1998.
(2) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to Section 12(g)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as
declared effective on February 13, 1998
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
(4) All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act on or after the date 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 this 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 & Rosati, Professional
Corporation, and investment partnerships of which such persons are partners
beneficially own 18,169 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
<PAGE>
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 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 Registrant's Restated Certificate of Incorporation provides that to the
fullest extent permitted by the DGCL, no director of the Registrant shall be
personally liable to the Registrant or its stockholders for monetary damages for
breach of fiduciary duty as a director. The Restated 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 Registrant's Bylaws provide that the Registrant shall indemnify to the
fullest 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 Registrant has entered into indemnification agreements with its
directors and executive officers, in addition to the indemnification provided
for in the Registrant's Bylaws, and intends to enter into indemnification
agreements with any new directors or executive officers in the future.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
-----------------------------------
Not applicable
ITEM 8. EXHIBITS.
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<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ ----------------------------------------------------------------------
<S> <C>
4.1* Amended and Restated 1994 Stock Option Plan and form of agreement
thereunder.
4.2* 1997 Employee Stock Purchase Plan and form of agreement thereunder.
5.1 Opinion of counsel as to the legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
24.1 Power of Attorney (see page II-4).
</TABLE>
- -------------------
* Incorporated by reference to exhibits filed with the Registrant's
Registration Statement on Form S-1 (file no. 333-40339), and as declared
effective on February 13, 1998
II-2
<PAGE>
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. 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 Corporation Law, the Registrant's Restated
Certificate of Incorporation, the Registrant's Bylaws or the Registrant's
indemnification agreements, the Registrant 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 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 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, 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 San Jose, State of California, on this 22nd day of
June, 1998.
SYMPHONIX DEVICES, INC.
By: /s/ Harry S. Robbins
---------------------------------------
Harry S. Robbins
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Harry S. Robbins and Alfred G.
Merriweather, 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 all 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 Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- --------------------------------------------- ---------------
<S> <C> <C>
/s/ Harry S. Robbins President, Chief Executive Officer and June 22, 1998
- --------------------------- Chairman of the Board of Directors (Principal
(Harry S. Robbins) Executive Officer)
/s/ Alfred G. Merriweather Vice President of Finance and Chief Financial June 22, 1998
- --------------------------- Officer (Principal Financial and Accounting
(Alfred G. Merriweather) Officer)
Director
- ---------------------------
(Geoffrey R. Ball)
/s/ B. J. Cassin Director June 22, 1998
- ---------------------------
(B. J. Cassin)
/s/ Terry Gould Director June 22, 1998
- ---------------------------
(Terry Gould)
/s/ Michael J. Levinthal Director June 22, 1998
- ---------------------------
(Michael J. Levinthal)
/s/ Petri T. Vainio Director June 22, 1998
- ---------------------------
(Petri T. Vainio)
</TABLE>
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------ ----------------------------------------------------------------------
<S> <C>
4.1* Amended and Restated 1994 Stock Option Plan and form of agreement
thereunder.
4.2* 1997 Employee Stock Purchase Plan and form of agreement thereunder.
5.1 Opinion of counsel as to legality of securities being registered.
23.1 Consent of counsel (contained in Exhibit 5.1).
23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
24.1 Power of Attorney (see page II-4).
</TABLE>
- --------------
* Incorporated by reference to exhibits filed with the Registrant's Registration
Statement on Form S-1 (file no. 333-40339), and as declared effective on
February 13, 1998.
<PAGE>
EXHIBIT 5.1
-----------
June 22, 1998
Symphonix Devices, Inc.
2331 Zanker Road
San Jose, CA 95131-1109
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 June 22, 1998 (the "Registration
Statement"), in connection with the registration under the Securities Act of
1933, as amended, of 1,033,960 shares of your Common Stock, par value $0.001 per
share (the "Shares"), (i) 528,032 shares of which are subject to currently
outstanding options not yet granted under the Amended and Restated 1994 Stock
Option Plan (the "Stock Plan"), (ii) 430,928 shares of which are to be
issued pursuant to outstanding options under the Stock Plan, and (iii) 75,000
shares of which are to be issued pursuant to 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
/s/ Wilson Sonsini Goodrich & Rosati
<PAGE>
EXHIBIT 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement of
Symphonix Devices, Inc. on Form S-8 of our report dated January 9, 1998, on our
audits of the consolidated financial statements of Symphonix Devices, Inc. as of
December 31, 1997 and 1996, and for each of the three years in the period ended
December 31, 1997, which report is included in the Registration Statement (Form
S-1 No. 333-40339).
COOPERS & LYBRAND L.L.P.
San Jose, California
June 19, 1998
