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As filed with the Securities and Exchange Commission on August 22, 1997
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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ENDOCARDIAL SOLUTIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 41-1724963
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1350 Energy Lane, Suite 110
St. Paul, Minnesota 55108
(Address of principal executive offices) (Zip Code)
1997 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
James W. Bullock
President and
Chief Executive Officer
ENDOCARDIAL SOLUTIONS, INC.
1350 Energy Lane, Suite 110
St. Paul, Minnesota 55108
(Name and address of agent for service)
(612) 644-7890
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities Amount to offering aggregate Amount of
to be be price per offering registration
registered Registered share(1) price(1) fee
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Common Stock
($.01 par value) 200,000 shares $12.75 $2,250,000 $773
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(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h)(1) and (c). The proposed maximum offering
price is based upon the average of the high and low prices of the Common
Stock as reported on the Nasdaq consolidated reporting system on August 19,
1997.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Endocardial
Solutions, Inc. (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement, as of their respective
dates:
(a) The Company's prospectus filed pursuant to Rule 424(b) of the
Securities Act of 1933, as amended (the "Securities Act of 1933") on
March 20, 1997.
(b) Not applicable.
(c) The description of the Company's capital stock contained in the
registration statement on Form 8-A filed by the Company on March 13,
1997 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date hereof and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby have been sold or which deregisters all securities remaining unsold shall
be deemed to be incorporated by reference herein and to be a part hereof from
the respective dates of filing of such documents.
Item 4. DESCRIPTION OF SECURITIES.
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 contains detailed
provisions for indemnification of directors and officers of Delaware
corporations against expenses, judgments, fines and settlements in connection
with litigation.
Article 7 of the Company's Amended Certificate of Incorporation
provides that a director shall not be personally liable to the Company or its
stockholders for monetary damages for a breach of fiduciary duty as a director,
except for liability (a) for any breach of the director's duty of loyalty to the
Company or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) under
the Delaware statutory provision making directors liable for unlawful dividends
or unlawful stock repurchases or redemptions or (d) for any transaction from
which the director derived an improper personal benefit.
Provisions regarding indemnification of officers and directors of the
Company to the extent permitted by Section 145 of the Delaware General
Corporation Law are contained in the Company's Amended Bylaws.
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Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
No securities are to be reoffered or resold pursuant to this
Registration Statement.
Item 8. EXHIBITS.
4.1 Amended and Restated Certificate of Incorporation (incorporated
by reference to Exhibit 3.2 to the Company's Registration
Statement on Form S-1, Registration No. 333-20677).
4.2 Amended Bylaws (incorporated by reference to Exhibit 3.3 to the
Company's Registration Statement on Form S-1, Registration No.
333-20677).
5.1 Opinion and Consent of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
24.1 Power of Attorney
Item 9. UNDERTAKINGS.
A. 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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) 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;
PROVIDED, HOWEVER, that paragraphs A(1)(i) and A(1)(ii) above will not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic
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reports filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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
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
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
of 1933 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 other
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 of 1933 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 St. Paul, State of Minnesota, on the 20th day of
August, 1997.
Endocardial Solutions, Inc.
By /s/ James W. Bullock
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James W. Bullock
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 20th day of August, 1997.
Signature Title
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/s/ James W. Bullock President, Chief Executive
- ---------------------------- Officer and Director
James W. Bullock (principal executive officer)
/s/ Dennis J. McFadden Chief Financial Officer and Vice President,
- ---------------------------- Finance
Dennis J. McFadden (principal financial and accounting officer)
* Director
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Graydon E. Beatty
* Director
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Ronald H. Kase
* Director
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Peter H. McNerney
* Director
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James E. Daverman
* Director
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Robert G. Hauser, M.D.
* Director
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Steven R. LaPorte
*By /s/ James W. Bullock
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James W. Bullock
Attorney-in-Fact
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EXHIBIT INDEX
Exhibit
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4.1 Amended and Restated Certificate of Incorporation (Previously filed)
4.2 Amended Bylaws (Previously filed)
5.1 Opinion and Consent of Dorsey & Whitney LLP
23.1 Consent of Ernst & Young LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1)
24.1 Power of Attorney
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EXHIBIT 5.1
[Dorsey & Whitney LLP Letterhead]
Endocardial Solutions, Inc.
1350 Energy Lane, Suite 110
St. Paul, Minnesota 55108
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Endocardial Solutions, Inc., a Delaware
corporation (the "Company"), in connection with a registration statement on Form
S-8 relating to the sale by the Company from time to time of up to 200,000
shares (the "Shares") of common stock, par value $.01 per share, of the Company.
The Shares will be issuable under the 1997 Employee Stock Purchase Plan (the
"Plan") of the Company.
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of our
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plan, and any relevant agreements thereunder,
will be validly issued, fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of
Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
registration statement on Form S-8 of the Company relating to the Plan.
Dated: August 22, 1997 Very truly yours,
KLC /s/ Dorsey & Whitney LLP
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EXHIBIT 23.1
Consent of Ernst & Young LLP
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Employee Stock Purchase Plan of Endocardial
Solutions, Inc. for the registration of 200,000 shares of common stock of our
report dated January 9, 1997, with respect to the financial statements of
Endocardial Solutions, Inc. included in the Registration Statement and
Prospectus (Form S-1) filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
August 18, 1997
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EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints James W. Bullock and Dennis J. McFadden
(with full power to act alone), as his true and lawful attorneys-in-fact and
agents, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign Registration
Statements on Form S-8 of Endocardial Solutions, Inc. and any or all amendments
(including post-effective amendments) thereto, with respect to the 1993 Long
Term Incentive and Stock Option Plan, the Directors' Stock Option Plan and the
1997 Employee Stock Purchase Plan, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission granting unto said attorneys-in-fact and agents, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or their substitute or
substitutes, lawfully do or cause to be done by virtue hereof.
Signature Title Date
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/s/ James W. Bullock President, Chief Executive April 30, 1997
- -------------------------- Officer and Director
James W. Bullock (principal executive officer)
/s/ Dennis J. McFadden Chief Financial Officer and April 30, 1997
- -------------------------- Vice President, Finance
Dennis J. McFadden (principal financial and
accounting officer)
/s/ Graydon E. Beatty Director April 30, 1997
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Graydon E. Beatty
/s/ Donald H. Kase Director April 30, 1997
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Ronald H. Kase
/s/ Peter H. McNerney Director April 30, 1997
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Peter H. McNerney
/s/ James E. Daverman Director April 30, 1997
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James E. Daverman
/s/ Robert G. Hauser, M.D. Director April 30, 1997
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Robert G. Hauser, M.D.
/s/ Steven R. LaPorte Director May 12, 1997
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Steven R. LaPorte
