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As filed with the Securities and Exchange Commission on August 1, 1997
Registration No. -
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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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UROQUEST MEDICAL CORPORATION
(Exact Name of Registrant as Specified in its Charter)
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Delaware 59-3176454
(State or Other Jurisdiction of (I.R.S. Employer Identification
Incorporation or Organization) Number)
173 Constitution Drive
Menlo Park, CA 94025
(Address of Principal Executive (Zip Code)
Offices)
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UROQUEST 1994 STOCK OPTION PLAN
UROQUEST 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full Title of the Plans)
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TERRY E. SPRAKER, Ph.D.
President and Chief Executive Officer
UroQuest Medical Corporation
173 Constitution Drive
Menlo Park, CA 94025
(Name and Address of Agent for Service)
(415) 463-5180
(Telephone Number, Including Area Code, of Agent for Service)
With Copy to:
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Holland & Hart LLP
215 South State Street, Suite 500
Salt Lake City, UT 84111-2346
(801) 595-7800
ATTENTION: DAVID R. RUDD, ESQ.
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum
Amount to Offering Aggregate Amount of
Title of Securities to be be Price Per Offering Registration
Registered(1) Registered Share Price Fee
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<S> <C> <C> <C> <C>
1994 Stock Option Plan,
Common Stock, $0.001 par
value:
Shares outstanding 1,250,107(2) $ .76(3) $ 950,081(4) $ 287.90
Shares available 2,178,464(5) 5.56(6) $12,112,260(7) 3,670.38
1996 Employee Stock
Purchase Plan, Common
Stock, $0.001 par value 250,000(8) 5.56(6) $ 1,390,000(7) 421.21
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TOTAL 3,678,571 $4,379.49
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933 (the
"Securities Act"), this Registration Statement shall cover any additional shares
of the Registrant's Common Stock, $0.001 par value, which are issued or become
issuable under the 1994 Stock Option Plan or the 1996 Employee Stock Purchase
Plan to prevent dilution resulting from any stock dividend, stock split,
recapitalization or other similar transaction.
(2) For the sole purpose of calculating the registration fee, the number of
shares to be registered under this Registration Statement has been broken into
three subtotals. This subtotal represents the number of shares issuable upon
exercise of currently outstanding options (options that have been granted as of
the date of this Registration Statement).
(3) Calculated in accordance with Rule 457(h) under the Securities Act
solely for the purpose of calculating the registration fee. The calculation is
based on the weighted average exercise price (rounded to nearest cent) of the
currently outstanding options.
(4) Calculated in accordance with Rule 457(h) under the Securities Act
based on the aggregate exercise price of all currently outstanding options.
(5) This subtotal represents the number of shares issuable upon exercise of
options that are available for grant, but have not been granted.
(6) Estimated in accordance with rule 457(h) under the Securities Act
solely for the purpose of calculating the registration fee. The calculation is
based upon the average of the high and low sales prices of a share of Common
Stock as reported on the Nasdaq National Market on July 29, 1997.
(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 1996 Employee Stock Purchase Plan.
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PART II
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by UroQuest Medical Corporation (the
"Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K (File No.
0-20963), for the fiscal year ended December 31, 1996.
(2) The Registrant's Amended Annual Report on Form 10-K/A (File
No. 0-20963), for the fiscal year ended December 31, 1996.
(3) The Registrant's Quarterly Report on Form 10-Q (File No.
0-20963), for the quarter ended March 31, 1997.
(4) The description of the Registrant's Common Stock, par value
$0.001, 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"),
In addition, 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 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 a 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.
Not applicable.
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
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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 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
shall deem proper."
The Registrant's Certificate of Incorporation provides that the
Registrant's directors will not be liable for monetary damages for breach of the
directors' fiduciary duty of care to the Registrant and its stockholders. This
provision in the Certificate of Incorporation does not eliminate the duty of
care, and in appropriate circumstances, equitable remedies such as an injunction
or other forms of non-monetary relief would remain available under Delaware law.
Each director will continue to be subject to liability for breach of the
director's duty of loyalty to the Registrant, for acts or omissions not in good
faith or involving intentional misconduct or knowing violations of law, for acts
or omissions the director believes to be contrary to the best interests of the
Registrant or its stockholders, for any transaction from which the director
derived improper personal benefit, for acts or omissions involving a reckless
disregard for the director's duty to the Registrant or its stockholders when the
director was aware or should have been aware of a risk of serious injury to the
Registrant or its stockholders, for acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Registrant or its stockholders, for improper transactions between
the director and the Registrant and for improper distributions to stockholders
and loans to directors and officers. This provision also does not affect a
director's responsibilities under any other laws, such as the federal securities
laws or state or federal environmental laws.
The Registrant's Certificate of Incorporation and Bylaws provide that
the Registrant will indemnify its directors, officers, employees and other
agents to the fullest extent permitted by Delaware law. The Registrant is also
empowered under its Bylaws to enter into indemnification contracts with its
directors and officers and to purchase insurance on behalf of any person it is
required or permitted to indemnify. Pursuant to this provision, the Registrant
has entered into indemnity agreements with each of its directors and officers
and has obtained directors' and officers' liability insurance.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
<TABLE>
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Regulation Document
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S-K Exhibit
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*4.1 Restated Certificate of
Incorporation of the Registrant, as
amended. (Filed as Exhibit 3.1 to
the Registrant's Annual Report on
Form 10-K for the year ended
December 31, 1996, filed March 31,
1997).
*4.2 Bylaws of the Registrant, as
amended. (Filed as Exhibit 3.3 to
Form S-1 filed July 16, 1996,
Registration Statement No.
333-07277).
*4.3 Form of Stock Certificate (Filed as
Exhibit 4.1 on Amendment No. 3 to
Form S-1 Reg. No. 333-07277 filed
October 17, 1996).
*4.4 UroQuest Medical Corporation 1994
Stock Option Plan (Filed as Exhibit
10.2 to Form S-1, Amendment No. 2
filed July 16, 1996, Commission File
No. 333-07277).
*4.5 UroQuest Medical Corporation 1996
Employee Stock Purchase Plan (Filed
as Exhibit 10.3 to Form S-1,
Amendment No. 2 filed July 16, 1996,
Commission File No. 333-07277).
5 Opinion of Holland & Hart LLP, as to
the legality of securities being
registered
23.1 Consent of KPMG Peat Marwick, LLP,
Independent Auditors
23.2 Consent of Holland & Hart LLP
(contained in Exhibit 5)
24 Power of Attorney (included on page
7 of this Registration Statement)
</TABLE>
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*Exhibits incorporated herein by reference.
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made of the securities registered hereby, a
post-effective amendment to this Registration Statement to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
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 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 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 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 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 certified 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 Salt Lake City, State of Utah, on July 31, 1997.
UroQuest Medical Corporation
/s/ Terry E. Spraker
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Terry E. Spraker, Ph.D., President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS by these presents that each person whose signature to
this Registration Statement appears below hereby constitutes and appoints Terry
E. Spraker and Jeffrey L. Kaiser, and each of them as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, the
Registration Statement has been signed below by the following persons in the
capacities and dates indicated:
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<TABLE>
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Signature Title Date
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<S> <C> <C>
/s/ Terry E. Spraker 7/30/97
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Terry E. Spraker, Ph.D. President, Chief Executive
Officer and Director (Principal
Executive Officer)
/s/ Jeffrey L. Kaiser 7/30/97
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Jeffrey L. Kaiser Vice President, Chief Financial
Officer and Treasurer (Principal
Financial and Accounting Officer)
/s/ Tom E. Brandt 7/30/97
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Tom E. Brandt Vice President of Operations,
Chief Operating Officer and
Director
/s/ Richard C. Davis, M.D. 7/30/97
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Richard C. Davis, M.D. Chairman of the Board
/s/ Jack W. Lasersohn 7/30/97
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Jack W. Lasersohn Director
/s/ Gary E. Nei 7/30/97
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Gary E. Nei Director
/s/ Maynard Ramsey, III 7/30/97
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Maynard Ramsey, III, M.D., Director
Ph.D.
/s/ Elizabeth H. Weatherman 7/30/97
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Elizabeth H. Weatherman Director
</TABLE>
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UROQUEST MEDICAL CORPORATION
EXHIBIT INDEX
<TABLE>
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Regulation S-K Document
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Exhibit
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*4.1 Restated Certificate of
Incorporation of the Registrant, as
amended. (Filed as Exhibit 3.1 to
the Registrant's Annual Report on
Form 10-K for the year ended
December 31, 1996, filed March 31,
1997).
*4.2 Bylaws of the Registrant, as
amended. (Filed as Exhibit 3.3 to
Form S-1 filed July 16, 1996,
Registration Statement No.
333-07277).
*4.3 Form of Stock Certificate (Filed as
Exhibit 4.1 on Amendment No. 3 to
Form S-1 Reg. No. 333-07277 filed
October 17, 1996).
*4.4 UroQuest Medical Corporation 1994
Stock Option Plan (Filed as Exhibit
10.2 to Form S-1, Amendment No. 2
filed July 16, 1996, Commission File
No. 333-07277).
*4.5 UroQuest Medical Corporation 1996
Employee Stock Purchase Plan (Filed
as Exhibit 10.3 to Form S-1,
Amendment No. 2 filed July 16, 1996,
Commission File No. 333-07277).
5 Opinion of Holland & Hart LLP, as to
the legality of securities being
registered
23.1 Consent of KPMG Peat Marwick, LLP,
Independent Auditors
23.2 Consent of Holland & Hart LLP
(contained in Exhibit 5)
24 Power of Attorney (included on page
7 of this Registration Statement)
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*Exhibits incorporated herein by reference.
<PAGE> 1
[HOLLAND & HART LLP LETTERHEAD]
July 30, 1997
UroQuest Medical Corporation
265 East 100 South, Suite 220
Salt Lake City, UT 84111-1616
Ladies and Gentlemen:
We have acted as counsel to UroQuest Medical Corporation, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933 (the "Act") of 3,678,571 shares of the Company's common
stock, $.001 par value (the "Shares"), to be offered upon the terms and subject
to the conditions set forth in the UroQuest 1994 Stock Option Plan and the
UroQuest 1996 Employee Stock Purchase Plan (the "Stock Plans").
In connection therewith, we have examined originals or copies,
certified or otherwise identified to our satisfaction, of the Certificate of
Incorporation of the Company, the By-laws of the Company, the Stock Plans,
records of relevant corporate proceedings with respect to the offering of the
Shares and such other documents, instruments and corporate proceedings with
respect to the offering of the Shares and such other documents, instruments and
corporate records as we have deemed necessary or appropriate for the expression
of the opinion contained herein. We have also reviewed the Company's
Registration Statement on Form S-8 dated July 31, 1997 (the "Registration
Statement") to be filed with the Securities and Exchange Commission with respect
to the Shares.
We have assumed the authenticity and completeness of all records,
certificates and other instruments submitted to us as originals, the conformity
to original documents of all records, certificates and other instruments
submitted to us as copies, the authenticity and completeness of the originals of
those records, certificates and other instruments submitted to us as copies and
the correctness of all statements of fact contained in all records, certificates
and other instruments that we have examined.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, when issued in accordance with the terms of the Stock
Plans, will be validly issued, fully paid and non-assessable.
<PAGE> 2
The opinion expressed herein is based solely upon and is limited to the
General Corporation Laws of the State of Delaware and the federal laws of the
United States of America, to the extent applicable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Holland & Hart LLP
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CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
UroQuest Medical Corporation:
We consent to incorporation by reference in the Registration Statement on Form
S-8 of UroQuest Medical Corporation of our report dated February 10, 1997
relating to the consolidated balance sheets of UroQuest Medical Corporation and
subsidiaries as of December 31, 1996 and 1995, and the related consolidated
statements of operations, stockholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1996, which report appears in
the December 31, 1996 annual report on Form 10-K of UroQuest Medical
Corporation.
KPMG Peat Marwick LLP
Salt Lake City, Utah
July 31, 1997
