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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 16, 1996
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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PERCLOSE, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3154669
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(State of incorporation) (I.R.S. Employer Identification No.)
199 Jefferson Drive
Menlo Park, California 94025
(Address, including zip code, of Registrant's principal executive offices)
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1992 STOCK PLAN
(Full title of the plan)
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Henry A. Plain, Jr.
Chief Executive Officer and President
Perclose, Inc.
199 Jefferson Drive
Menlo Park, California 94025
(Name, address, and telephone number, including area code, of agent for service)
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Copies to:
Christopher J. Ozburn, Esq.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered Per Share Offering Price Fee
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<S> <C> <C> <C> <C>
1992 Stock Plan
Common Stock, $.001 par value 450,000 shares $20.00(1) $9,000,000(1) $2,727.27
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TOTAL $
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</TABLE>
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(1) Estimated in accordance with Rule 457(h) under the 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 December 9, 1996 because the price at which
the options to be granted in the future may be exercised is not
currently determinable.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Annual Report on Form 10-K for the year ended March
31, 1996, filed pursuant to Section 13 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), on June 28, 1996.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1996, filed pursuant to Section 13 of the Exchange Act,
on November 12, 1996.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996, filed pursuant to Section 13 of the Exchange Act, on
August 14, 1996.
(d) 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 September 29, 1995.
(e) 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 27,059 shares of the Registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
certain liabilities (including reimbursement of expenses incurred) arising under
the Securities Act of 1933 (the "Securities Act").
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and executive officers and may indemnify its other officers and
employees and other agents to the fullest extent permitted by law, including
circumstances in which indemnification is otherwise discretionary under Delaware
law.
The Registrant has adopted provisions in its Certificate of
Incorporation that limit the personal liability of its directors and officers
for monetary damages arising from a breach of their fiduciary duties in certain
circumstances to the fullest extent permitted by law. Such limitation of
liability does not affect the availability of equitable remedies such as
injunctive relief or rescission.
The Registrant entered into indemnification agreements with its
executive officers and directors containing provisions which are in some
respects broader that the specific indemnification provisions contained in the
General Corporation Law of Delaware. The indemnification agreements may require
the Company, among other things, to indemnify such officers and directors
against certain liabilities that may arise by reason of their status or service
as directors or officers
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(other than liabilities arising from willful misconduct of a culpable nature).
These agreements also indemnify the directors and executive officers for certain
expenses (including attorney's fees), judgments, fines and settlement amounts
incurred as a result of any proceeding against them as to which they could be
indemnified.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
Exhibit
Number Document
- ---------- --------------------------------------------------------------------
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being registered.
*4.1 1992 Stock Plan and form of Stock Option Agreement thereunder.
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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* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 33-97128), in the form declared effective on
November 6, 1995.
Item 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed
to be a new registration statement relating to the securities therein,
and the offering of such securities at that time shall be deemed to be
an initial bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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
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 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 Menlo Park, California, on December 9, 1996.
PERCLOSE, INC.
By: /s/ Henry A. Plain, Jr.
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Henry A. Plain, Jr.
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Henry A. Plain, Jr. and Kenneth Ludlum,
jointly and severally, as his attorney-in-fact, each with the power of
substitution, for him 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 the said attorneys-in-fact,
or his 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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
_________ _____ ____
<S> <C> <C>
/s/ Henry A. Plain, Jr.
- ------------------------------------- President, Chief Executive Officer and December 9, 1996
Henry A. Plain, Jr. Director (Principal Executive Officer)
/s/ Kenneth Ludlum Vice President and Chief Financial
- ------------------------------------- Officer (Principal Financial and December 9, 1996
Kenneth Ludlum Accounting Officer)
/s/ Serge Lashutka
- ------------------------------------- Director December 9, 1996
Serge Lashutka
/s/ Vaughn D. Bryson
- ------------------------------------- Director December 9, 1996
Vaughn D. Bryson
/s/ Michael L. Eagle
- ------------------------------------- Director December 9, 1996
Michael L. Eagle
- ------------------------------------- Director December , 1996
John B. Simpson, Ph.D., M.D.
/s/ James W. Vetter, M.D.
- -------------------------------------- Director December 9, 1996
James W. Vetter, M.D.
/s/ Mark A. Wan
- -------------------------------------- Director December 9, 1996
Mark A. Wan
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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EXHIBITS
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REGISTRATION STATEMENT ON FORM S-8
PERCLOSE, INC.
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INDEX TO EXHIBITS
Exhibit Description
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, as to the legality of securities being registered
*4.1 1992 Stock Plan and form of Stock Option Agreement
thereunder
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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* Incorporated by reference to exhibits filed with the Company's Registration
Statement on Form S-1 (file no. 33-97128), in the form declared effective on
November 6, 1995.
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Exhibit 5.1
December 3, 1996
Perclose, Inc.
199 Jefferson Drive
Menlo Park, California 94025
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 or about December 12, 1996
(the "Registration Statement") in connection with the registration under the
Securities Act of 1933, as amended, of an additional 450,000 shares reserved for
issuance under the 1992 Stock Plan (the "Plan"). As legal counsel for Perclose,
Inc., 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 of Common Stock of Perclose, Inc. (the "Shares") pursuant to the
Plan.
It is our opinion that the Shares, when issued and sold in the manner
described in the Plan and pursuant to the agreement that accompanies each grant
under the Plan, 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
Professional Corporation
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1992 Stock Plan of Perclose, Inc. of our reports dated
May 1, 1996, with respect to the financial statements of Perclose, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
March 31, 1996 and the related financial statement schedule included therein,
filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
San Jose, California
December 12, 1996
