0001021408-01-508019.txt : 20011019 0001021408-01-508019.hdr.sgml : 20011019 ACCESSION NUMBER: 0001021408-01-508019 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20011012 EFFECTIVENESS DATE: 20011012 FILER: COMPANY DATA: COMPANY CONFORMED NAME: THERASENSE INC CENTRAL INDEX KEY: 0001073695 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 943267373 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-71462 FILM NUMBER: 1757431 BUSINESS ADDRESS: STREET 1: 1360 S LOOP RD STREET 2: SUITE 2000 CITY: SAN FRANCISCO STATE: CA ZIP: 94502 BUSINESS PHONE: 5107495400 MAIL ADDRESS: STREET 1: 1360 S LOOP RD CITY: SAN FRANCISCO STATE: CA ZIP: 94502 S-8 1 ds8.txt FORM S-8 2001 EMPLOYEE STOCK PURCHASE PLAN As filed with the Securities and Exchange Commission on October 11, 2001 Registration No. 333-___ ================================================================================ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _____________________ FORM S-8 REGISTRATION STATEMENT Under The Securities Act of 1933 _____________________ THERASENSE, INC. (Exact name of Registrant as specified in its charter) _____________________ Delaware 94-3267373 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification Number) TheraSense, Inc. 1360 South Loop Road Alameda, California 94502 (510) 749-5400 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) _____________________ 2001 EMPLOYEE STOCK PURCHASE PLAN _____________________ W. Mark Lortz President and Chief Executive Officer TheraSense, Inc. 1360 South Loop Road Alameda, California 94502 (510) 749-5400 (Name, address, including zip code, and telephone number, including area code, of agent for service) _____________________ Copy to: Karen A. Dempsey, Esq. Wilson Sonsini Goodrich & Rosati Professional Corporation One Market Spear Street Tower, Suite 3300 San Francisco, CA 94105 (415) 947-2000 _____________________ CALCULATION OF REGISTRATION FEE
======================================================================================================================== Proposed Maximum Proposed Maximum Amount of Amount to be Offering Price Aggregate Registration Title of Securities to be Registered Registered Per Share (1) Offering Price Fee ------------------------------------------------------------------------------------------------------------------------ Common Stock $ .001 par value Issuable under: 2001 Employee Stock Purchase Plan 1,000,000 $16.15 $16,150,000 $4,037.50 ========================================================================================================================
(1) Estimated pursuant to Rule 457(a) solely for the purpose of calculating the registration fee, whereby the estimated proposed maximum offering price per share is $16.15 (85% of $19.00, the initial price at which our common stock was sold to the public on October, 11 2001). Pursuant to the 2001 Employee Stock Purchase Plan, the purchase price of a share of common stock shall mean an amount equal to 85% of the lower of the fair market value of a share of common stock at the beginning of an offering period or after a purchase period ends. ================================================================================ THERASENSE, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Explanatory Note ---------------- This Registration Statement on From S-8 is being filed for the purpose of registering 1,000,000 shares of the Registrant's Common Stock to be purchased under the Registrant's 2001 Employee Stock Purchase Plan (the "2001 ESPP"). ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents and information filed with the Securities and Exchange Commission (the "Commission") by the registrant are incorporated herein by reference: (a) TheraSense's Registration Statement on Form S-1 (File No. 333-64456) filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), declared effective on October 11, 2001. (b) The description of the Registrant's common stock which is contained in the Registrant's Registration Statement on Form 8-A declared effective by the Commission on October 11, 2001 pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any description of any securities of the Registrant which is contained in any registration statement filed after the date hereof under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating any such description. 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 to this Registration Statement 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 in this Registration Statement and to be a part hereof from the date of filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. The class of securities to be offered is registered under Section 12(g) of the Exchange Act. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Various legal matters with respect to the validity of the Common Stock issued and sold under the 2001 Employee Stock Purchase Plan will be passed upon for us by Wilson Sonsini Goodrich & Rosati, P.C., San Francisco, California. An investment partnership comprised of some current and former members of Wilson Sonsini Goodrich & Rosati and one current member of Wilson Sonsini Goodrich & Rosati, beneficially own an aggregate of 34,153 shares of the Registrant's Common Stock. These shares have an aggregate value of $648,907.00 II-1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law permits a corporation to include in its charter documents, and in agreements between the corporation and its directors and officers, provisions expanding the scope of indemnification beyond that specifically provided by the current law. Article VIII of our Amended and Restated Certificate of Incorporation provides for the indemnification of directors to the fullest extent permissible under Delaware law. Article VI of our Amended and Restated Bylaws provides for the indemnification of officers, directors and third parties acting on our behalf if such person acted in good faith and in a manner reasonably believed to be in and not opposed to our best interest, and, with respect to any criminal action or proceeding, the indemnified party had no reason to believe his or her conduct was unlawful. We have entered into indemnification agreements with our directors and executive officers, in addition to indemnification provided for in our charter documents, and we intend to enter into indemnification agreements with any new directors and executive officers in the future. We intend to purchase and maintain insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. Exhibit Number Description of Document ----------------- ------------------------------------------------------------- 4.1* 2001 Employee Stock Purchase Plan 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of Independent Accountants. 23.2 Consent of Counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page S-1). -------------------------------------------------------------------------------- * Incorporated by Reference to Exhibit 10.3 of the Registrant's Registration Statement on Form S-1 (Registration No. 333-64456) declared effective by the Commission on October 11, 2001. II-2 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 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, 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 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 may be permitted to directors, officers and controlling persons of the Registrant pursuant to law, the Registrant's Amended and Restated Certificate of Incorporation, Amended and Restated Bylaws, indemnification agreements, 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 matter has 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 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 Alameda, State of California, on October 11, 2001. By: /s/ W. Mark Lortz ---------------------------------------- W. Mark Lortz President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints W. Mark Lortz, Charles T. Liamos and Robert D. Brownell jointly and severally, his or her attorneys-in-fact, each with the power of substitution, 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 exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorney-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, as amended, this Registration Statement of Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date ------------------------------------------ -------------------------------------- --------------- /s/ W. Mark Lortz President, Chief Executive Officer and October 11, 2001 ------------------------------------------ Chairman of the Board (Principal W. Mark Lortz Executive Officer) /s/ Charles T. Liamos Chief Financial Officer and Vice October 11, 2001 ------------------------------------------ President (Principal Financial and Charles T. Liamos Accounting Officer) /s/ Ephraim Heller Director October 11, 2001 ------------------------------------------ Ephraim Heller /s/ Annette J. Campbell-White Director October 11, 2001 ------------------------------------------ Annette J. Campbell-White /s/ Mark J. Gainor Director October 11, 2001 ------------------------------------------ Mark J. Gainor /s/ Ross A. Jaffe, M.D. Director October 11, 2001 ------------------------------------------ Ross A. Jaffe /s/ Michael McNamara Director October 11, 2001 ------------------------------------------ Michael McNamara /s/ Robert R. Momsen Director October 11, 2001 ------------------------------------------ Robert R. Momsen /s/ Richard P. Thompson Director October 11, 2001 ------------------------------------------ Richard P. Thompson
S-1 INDEX TO EXHIBITS
Exhibit Number Description of Document ------------- ------------------------------------------------------------------------ 4.1* 2001 Employee Stock Purchase Plan 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation. 23.1 Consent of Independent Accountants. 23.2 Consent of Counsel (contained in Exhibit 5.1). 24.1 Power of Attorney (see page S-1). --------------------------------------------------------------------------------------------
* Incorporated by Reference to Exhibit 10.3 of the Registrant's Registration Statement on Form S-1 (Registration No. 333-64456) declared effective by the Commission on October 11, 2001. -2- EX-5.1 3 dex51.txt OPINION OF WILSON SONSINI GOODRICH & ROSATI Exhibit 5.1 Wilson Sonsini Goodrich & Rosati, P.C. San Francisco, California October 11, 2001 TheraSense, Inc. 1360 South Loop Road Alameda, CA 94502 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 October 11, 2001 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of 1,000,000 shares of your Common Stock reserved for issuance under the 2001 Employee Stock Purchase Plan (the "2001 ESPP"). As your legal counsel, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by you in connection with the sale and issuance of such Common Stock under the 2001 ESPP. It is our opinion that, when issued and sold in the respective manners referred to in the 2001 ESPP and pursuant to the agreements which accompany the 2001 ESPP, the Common Stock issued and sold thereby 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, including any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI Professional Corporation /s/ Wilson Sonsini Goodrich & Rosati, P.C. EX-23.1 4 dex231.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated June 21, 2001, except for the sixth paragraph of Note 6, as to which the date is June 27, 2001, relating to the financial statements of TheraSense, Inc., which appears in such registration statement of Form S-1 (No. 333-64456). We also consent to the incorporation by reference of our report dated June 21, 2001, except for the sixth paragraph of Note 6, as to which the date is June 27, 2001, relating to the financial statement schedule, which appears in such registration statement on Form S-1 (No. 333-64456). PricewaterhouseCoopers LLP /s/ PricewaterhouseCoopers LLP San Jose, California October 11, 2001