-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, SOB1wwjJMWLDARyxGbTSKWDvSmCtiG+Yz+PtCzvNaf41orwFPYX0R9GK+4unKBp1 eVMPYsD6R09uv3qjhL3p2A== 0000891618-99-001218.txt : 19990330 0000891618-99-001218.hdr.sgml : 19990330 ACCESSION NUMBER: 0000891618-99-001218 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990329 EFFECTIVENESS DATE: 19990329 FILER: COMPANY DATA: COMPANY CONFORMED NAME: VISX INC CENTRAL INDEX KEY: 0000837991 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 061161793 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-75207 FILM NUMBER: 99576609 BUSINESS ADDRESS: STREET 1: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051 BUSINESS PHONE: 4087332020 MAIL ADDRESS: STREET 1: VISX INC STREET 2: 3400 CENTRAL EXPRESSWAY CITY: SANTA CLARA STATE: CA ZIP: 95051-0703 FORMER COMPANY: FORMER CONFORMED NAME: TAUNTON TECHNOLOGIES INC DATE OF NAME CHANGE: 19901212 S-8 1 FORM S-8 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 29, 1999 REGISTRATION NO.333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED VISX, INCORPORATED (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 06-1161793 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION IDENTIFICATION NO.) OR ORGANIZATION) 3400 CENTRAL EXPRESSWAY SANTA CLARA, CALIFORNIA 95051 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) 1995 STOCK PLAN (FULL TITLE OF THE PLAN) MARK B. LOGAN CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER VISX, INCORPORATED 3400 CENTRAL EXPRESSWAY SANTA CLARA, CALIFORNIA 95051 (NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE) COPIES TO: KINA LAMBLIN, ESQ. VISX, INCORPORATED 3400 CENTRAL EXPRESSWAY SANTA CLARA, CALIFORNIA 95051 (408) 733-2020 2 CALCULATION OF REGISTRATION FEE
===================================================================================================================== PROPOSED MAXIMUM PROPOSED MAXIMUM TITLE OF SECURITIES TO BE REGISTERED(1) AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF REGISTERED PER SHARE PRICE(2) REGISTRATION FEE - --------------------------------------------------------------------------------------------------------------------- 1995 Stock Plan Common Stock, $0.01 par value............. 923,971 $93.3125 $86,218,043.93 $23,968.62 - --------------------------------------------------------------------------------------------------------------------- ===================================================================================================================== (1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan described herein. (2) Calculated solely for the purpose of this offering under Rule 457(h) of the Securities Act, on the basis of the average of the high and low selling prices per share of Common Stock on March 25, 1999 as reported on the Nasdaq National Market. - --------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------
2 3 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 December 31, 1998 filed pursuant to Section 13 of the Securities Exchange Act of 1934 (the "Exchange Act"). (b) The description of the Common Stock of the Registrant that is contained in the Registration Statement on Form 8-A/A filed pursuant to Section 12 of the Exchange Act on November 13, 1995. (c) 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 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. The Registrant has adopted provisions in its Certificate of Incorporation that eliminate 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 and authorizes the Registrant to indemnify its directors and officers 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's Bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent permitted by the General Corporation Law of Delaware, including circumstances in which indemnification is otherwise discretionary under Delaware law. 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 Registrant has entered into indemnification agreements to such effect with its officers and directors containing provisions which are in some respects broader than 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 (other than liabilities arising from willful misconduct of a culpable nature) and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. The form of such indemnification agreement has been approved by the Company's stockholders. 3 4 ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION ------- ----------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality of securities being registered 10.1 1995 Stock Plan (previously filed as Exhibit 10.1 to Form S-8 Registration Statement No. 333-23999) 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1.hereto) 24.1 Power of Attorney (see page 6)
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 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 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 an 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 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 Securities Act and will be governed by the final adjudication of such issue. 4 5 SIGNATURES Pursuant to the requirements of the Securities Act, 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 Santa Clara, State of California on March 29, 1999. VISX, INCORPORATED By: /s/ MARK B. LOGAN --------------------------------- Mark B. Logan, Chairman of the Board and Chief Executive Officer By: /s/ TIMOTHY R. MAIER --------------------------------- Timothy R. Maier, Executive Vice President, Chief Financial Officer and Treasurer 5 6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Mark B. Logan and Timothy R. Maier, 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 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, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- PRINCIPAL EXECUTIVE OFFICER: /s/ MARK B. LOGAN Chairman of the Board, Chief March 29, 1999 - ----------------------------------- Executive Officer and Director* Mark B. Logan PRINCIPAL FINANCIAL OFFICER: /s/ TIMOTHY R. MAIER Executive Vice President, March 29, 1999 - ----------------------------------- Chief Financial Officer and Timothy R. Maier Treasurer PRINCIPAL ACCOUNTING OFFICER: /s/ DEREK A. BERTOCCI Vice President, Controller March 29, 1999 - ----------------------------------- Derek A. Bertocci /s/ ELIZABETH H. Davila President, Chief Operating March 29, 1999 - ----------------------------------- Officer and Director* Elizabeth H. Davila Director* March __, 1999 - ----------------------------------- Glendon E. French /s/ JOHN W. GALIARDO Director* March 29, 1999 - -------------------------------------- John W. Galiardo /s/ JAY T. HOLMES Director* March 29, 1999 - -------------------------------------- Jay T. Holmes /s/ RICHARD B. SAYFORD Director* March 29, 1999 - -------------------------------------- Richard B. Sayford
- ---------- * The employee benefit plan being registered pursuant to this Registration Statement is subject to administration by the Board of Directors of the Registrant. 6 7
INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION ------- ----------- 5.1 Opinion of Wilson Sonsini Goodrich & Rosati, P.C., as to the legality of securities being registered 10.1 1995 Stock Plan (previously filed as Exhibit 10.1 to Form S-8 Registration Statement No. 333-23999) 23.1 Consent of Arthur Andersen LLP, Independent Public Accountants 23.2 Consent of Wilson Sonsini Goodrich & Rosati, P.C. (contained in Exhibit 5.1 hereto) 24.1 Power of Attorney (see page 6)
7 EX-5.1 2 OPINION OF WILSON SONSINI GOODRICH & ROSATI 1 EXHIBIT 5.1 March 29, 1999 VISX, Incorporated 3400 Central Expressway Santa Clara, CA 95051 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 March 29, 1999 (the "Registration Statement") in connection with the registration under the Securities Act of 1933, as amended, of Nine Hundred Twenty-Three Thousand Nine Hundred Seventy-One (923,971) shares (the "Shares") of Common Stock issuable pursuant to the 1995 Stock Plan (the "Plan"). As legal counsel for VISX, Incorporated, 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 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, /s/ Wilson Sonsini Goodrich & Rosati ------------------------------------ WILSON SONSINI GOODRICH & ROSATI Professional Corporation 8 EX-23.1 3 CONSENT OF ARTHUR ANDERSEN 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this registration statement of our Report dated January 18, 1999 included in the Form 10-K of VISX, Incorporated for the year ended December 31, 1998. /s/ Arthur Andersen LLP ------------------- ARTHUR ANDERSEN LLP San Jose, California March 24, 1999 9 -----END PRIVACY-ENHANCED MESSAGE-----