S-8 POS 1 ds8pos.txt FORM S-8 POS As filed with the Securities and Exchange Commission on June 20, 2001 Registration No. 333-57012 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ________________ POST-EFFECTIVE AMENDMENT NO. 1 to FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 ________________ VARIAN MEDICAL SYSTEMS, INC. (Exact name of Registrant as specified in its charter) Delaware 94-2359345 (State of incorporation) (I.R.S. Employer Identification No.) 3100 Hansen Way Palo Alto, California 94304-1129 (Address of principal executive offices) _______________________ Varian Medical Systems, Inc. Retirement Plan (Full title of the Plan) _______________________ Joseph B. Phair Vice President, Administration, General Counsel and Secretary Varian Medical Systems, Inc. 3100 Hansen Way Palo Alto, CA 94304-1129 (650) 493-4000 (Name, address and telephone number, including area code, of agent for service) ================================================================================ PART I Item 1. Plan Information.* ---------------- Item 2. Registrant Information and Employee Plan Annual Information.* ----------------------------------------------------------- * Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act of 1933 (the "Securities Act") and the Note to Part I of Form S-8. PART II Item 3. Incorporation of Documents by Reference. --------------------------------------- Varian Medical Systems, Inc. (the "Registrant") hereby incorporates by reference into this Registration Statement the following documents filed with the Securities and Exchange Commission (the "Commission"): (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended September 29, 2000. (b) The Registrant's Quarterly Reports on Form 10-Q for the quarters ended December 29, 2000 and March 30, 2001. (c) The description of Registrant's Common Stock and preferred stock purchase rights contained in the Registrant's Registration Statements on Form 8- A, including any subsequent amendments or reports filed for the purpose of updating such information. (d) The Annual Report on Form 11-K of the Varian Medical Systems, Inc. Retirement Plan for the fiscal year ended September 29, 2000. All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") shall be deemed incorporated by reference in this Registration Statement and to be a part hereof from the date of filing such documents until a post- effective amendment of this Registration Statement is filed which indicates that all securities being offered hereby have been sold or which deregisters all securities then remaining unsold. Item 4. Description of Securities. Not applicable. ------------------------- Item 5. Interests of Named Experts and Counsel. -------------------------------------- The legality of the securities offered hereby has been passed on for the Registrant by Joseph B. Phair. Mr. Phair is Vice President, Administration General Counsel and Secretary of the Registrant, and as of May 31, 2001, beneficially owned 87,573 shares of the Registrant's Common Stock, which includes 62,630 shares which may be acquired within 60 days upon the exercise of options and 2,825 shares owned by his children living in his household. Item 6. Indemnification of Directors and Officers. ----------------------------------------- Section 102 of the Delaware General Corporation Law allows a corporation to eliminate the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, subject to certain exceptions. Article TENTH of the Registrant's Restated Certificate of Incorporation eliminates the personal liability of the Registrant's directors to the Registrant or its stockholders for monetary damages for breach of a director's fiduciary duty, except for liability: (1) under Section 174 of the Delaware General Corporation Law; (2) for breach of a director's duty of loyalty to the Registrant or its stockholders; (3) for 1 acts or omissions not in good faith or involving intentional misconduct or knowing violations of law; or (4) for any transaction from which the director derived an improper personal benefit. Section 145 of the Delaware General Corporation Law grants to each corporation organized thereunder the power to indemnify its officers and directors for certain acts. Article NINTH of the Registrant's By-laws sets forth the extent to which officers and directors of the Registrant may be indemnified against any liabilities which they may incur in their capacities as directors or officers of the Registrant. Article NINTH provides, in part, that each person who was or is made a party or is threatened to be made a party or is involved in any action, suit or proceeding by reason of the fact that he or she is or was a director or officer of the Registrant or is or was serving at the request of the Registrant as a director, officer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, shall be indemnified and held harmless by the Registrant, to the fullest extent authorized by the Delaware General Corporation Law and any other applicable laws, against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection with such proceeding; provided, however, that if the person seeking indemnification initiated the proceeding in respect to which he or she is seeking indemnification from the Registrant, the Registrant shall provide such indemnification only if such proceeding was authorized by the Registrant's Board of Directors. The Registrant has, and intends in the future to enter into, agreements to provide indemnification for directors and officers in addition to that contained in the Restated Certificate of Incorporation and By-laws. The indemnification agreements require the Registrant, among other things, to indemnify officers and directors against liabilities that may arise by reason of their status or service as officers, directors, employees, trustees, partners, agents or fiduciaries of the Registrant (but not for liabilities arising from conduct entered into in bad faith or conduct which the officer or director did not reasonably believe to be in the best interest of the Registrant), and to advance sums covering the expenses they incurred as a result of any proceeding against them with respect to which they are indemnified under such indemnification agreement. Item 7. Exemption from Registration Claimed. Not applicable. ----------------------------------- Item 8. Exhibits. -------- (a) Exhibit Number ------ 5.1 Opinion of Joseph B. Phair, Esq., Vice President, Administration, General Counsel and Secretary to Registrant.* 23.1 Consent of Joseph B. Phair, Esq., Vice President, Administration, General Counsel and Secretary to Registrant (included in Exhibit 5.1).* 23.2 Consent of Independent Accountants. 24.1 Powers of Attorney.* 99.1 Varian Medical Systems, Inc. Retirement Plan.* (b) The Registrant will submit the Varian Medical Systems, Inc. Retirement Plan (the "Plan") and any amendments thereto to the Internal Revenue Service ("IRS") in a timely manner and will make all changes required by the IRS in order to qualify the Plan. _____________________ * Previously filed 2 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: (i) to include therein any prospectus required by section 10(a)(3) of the Securities Act; (ii) to reflect in such prospectus any facts or events arising after the effective date of this 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 herein; and (iii) 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; provided, however, that clauses (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed by the Registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by reference into this Registration Statement; (2) that, for purposes 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; and (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 Varian Medical Systems, Inc. Salaried Employees' Savings Plan. (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 into this 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 the indemnification for liabilities arising under the Securities Act may be permitted for 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 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. 3 SIGNATURES THE REGISTRANT Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant, a corporation organized and existing under the laws of the State of Delaware, 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 Palo Alto, State of California, on this 20th day of June, 2001. VARIAN MEDICAL SYSTEMS, INC. By: /s/ Joseph B. Phair ---------------------------------------- Joseph B. Phair Vice President, Administration, General Counsel and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- June 20, 2001 *Richard M. Levy Director, President and Chief Executive Officer (Principal Executive Officer) June 20, 2001 /s/ Elisha W. Finney Vice President, Finance and ------------------------------- Chief Financial Officer Elisha W. Finney (Principal Financial Officer and Principal Accounting Officer) June 20, 2001 *David W. Martin, Jr. Director June 20, 2001 *Richard W. Vieser Director June 20, 2001 *John Seely Brown Director June 20, 2001 *Samuel Hellman Director June 20, 2001 *Terry R. Lautenbach Director June 20, 2001 *Burton Richter Director *By: /s/ Joseph B. Phair -------------------------- Joseph B. Phair Attorney-in-fact
4 THE PLAN Pursuant to the requirements of the Securities Act of 1933, the trustee (or other persons who administer the employee benefit plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized in the City of Palo Alto, State of California on this 20th day of June 2001. THE VARIAN MEDICAL SYSTEMS, INC. RETIREMENT PLAN By: Varian Medical Systems, Inc. By: /s/ Joseph B. Phair --------------------------------------- Joseph B. Phair Vice President, Administration, General Counsel and Secretary 5 EXHIBIT INDEX Exhibit Number ------ 5.1 Opinion of Joseph B. Phair, Esq., Vice President, Administration, General Counsel and Secretary to Registrant.* 23.1 Consent of Joseph B. Phair, Esq., Vice President, Administration, General Counsel and Secretary to Registrant (included in Exhibit 5.1).* 23.2 Consent of Independent Accountants. 24.1 Powers of Attorney.* 99.1 Varian Medical Systems, Inc. Retirement Plan.* ___________________________ * Previously filed