-----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, EyIPWaovD2+CrYPOkObfbIg4S+t8Ud9UvkjdMw2/wPDi3WQDoeAlbOlKruqO6Pzy Nx+3mRakVgoPSTH5y+QG1Q== 0000912057-01-505201.txt : 20010329 0000912057-01-505201.hdr.sgml : 20010329 ACCESSION NUMBER: 0000912057-01-505201 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20010328 EFFECTIVENESS DATE: 20010328 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLC SYSTEMS INC CENTRAL INDEX KEY: 0000879682 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 043153858 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57752 FILM NUMBER: 1581891 BUSINESS ADDRESS: STREET 1: 10 FORGE PK CITY: FRANKLIN STATE: MA ZIP: 02038 BUSINESS PHONE: 5085418800 MAIL ADDRESS: STREET 1: 10 FORGE PARK CITY: FRANKLIN STATE: MA ZIP: 02038 S-8 1 a2042337zs-8.txt S-8 As filed with the Securities and Exchange Commission on March 28, 2001 Registration No. 333-________ SECURITIES AND EXCHANGE COMMISSION Washington, D. C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 PLC SYSTEMS INC. (Exact Name of Registrant as Specified in Its Charter) YUKON TERRITORY, CANADA 04-3153858 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification Number) 10 FORGE PARK, FRANKLIN, MA 02038 (Address of Principal Executive Offices) (Zip Code) 2000 NON-QUALIFIED PERFORMANCE AND RETENTION EQUITY PLAN (Full Title of the Plan) JAMES G. THOMASCH PLC SYSTEMS INC. 10 FORGE PARK FRANKLIN, MASSACHUSETTS 02038 (Name and Address of Agent for Service) (508) 541-8800 (Telephone Number, Including Area Code, of Agent for Service) CALCULATION OF REGISTRATION FEE
- ----------------------------- ----------------- ---------------------- --------------------- ----------------------- Proposed Maximum Proposed Maximum Title of Securities to be Amount to be Offering Price Per Aggregate Offering Amount of Registered Registered Share Price Registration Fee - ----------------------------- ----------------- ---------------------- --------------------- ----------------------- Common stock, no par value 50,000 $0.775(1) $38,750(1) 240,000(2) $0.6250(3) $150,000(3) 85,000(2) $0.8125(3) $69,063(3) 25,000(2) $1.1200(3) $28,000(3) - ----------------------------- ----------------- ---------------------- --------------------- ----------------------- Total $285,813 $72 - ----------------------------- ----------------- ---------------------- --------------------- -----------------------
(1) Estimated solely for the purpose of calculating the registration fee in accordance with Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based on the average of the high and low prices of the common stock as reported by the American Stock Exchange on March 26, 2001. (2) Shares of common stock subject to presently outstanding options under the 2000 Non-qualified Performance and Retention Equity Plan. (3) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) of the Securities Act of 1933, as amended, and based on the prices at which the options may be exercised, respectively. PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The information required by Part I is included in documents sent or given to participants in the Registrant's 2000 Non-qualified Performance and Retention Equity Plan pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the "Securities Act"). PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE The Registrant is subject to the informational and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance therewith files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). The following documents, which are on file with the Commission, are incorporated in this Registration Statement by reference: (1) The Registrant's latest annual report filed pursuant to Section 13(a) or 15(d) of the Exchange Act, or the latest prospectus filed pursuant to Rule 424(b) under the Securities Act that contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (2) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (1) above. (3) The description of the common stock of the Registrant, contained in a registration statement filed under the Exchange Act, including any amendment or report filed for the purpose of updating 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 which indicates that all shares of common stock offered hereby have been sold or which deregisters all shares of common stock then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof from the date of the filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Item 4. DESCRIPTION OF SECURITIES Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL The legality of the common stock being offered hereby will be passed upon for the Registrant by Anton Campion Macdonald and Oyler. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Yukon Business Corporation Act (the "Business Corporations Act"), Section 126, enables a corporation to indemnify a director or officer or a former director or officer of the corporation, or a person who acts or acted at the corporation's request as a director or officer of a body corporate of which the corporation is or was a shareholder or creditor, and his heirs and personal representatives, against all costs, charges and expenses, including an amount paid to settle an action or to satisfy a judgment 2 reasonably incurred by him in any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been such a director or officer if: (1) he acted honestly and in good faith with a view to the best interest of the corporation; and (2) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. The Business Corporations Act also enables a corporation, with the approval of the Supreme Court of the Yukon Territory, to indemnify such a director or officer in respect of an action by or on behalf of the corporation or body corporate to procure a judgment in its favor, to which he is made a party by reason of being or having been a director or officer of the corporation or body corporate, against all costs, charges and expenses reasonably incurred by him in connection with the action if he fulfils the conditions set forth in subparagraphs (1) and (2) above. Furthermore, the Business Corporation Act provides that such a director or officer is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by him in connection with the defense of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the corporation or body corporate if the person seeking indemnification: (1) fulfills the conditions set forth in subparagraphs (1) and (2) above; (2) was substantially successful on the merits in his defense of the action or proceeding; and (3) is fairly and reasonably entitled to indemnity. The Business Corporations Act also provides that a corporation may purchase and maintain insurance for the benefit of a director or officer or a former director or officer of the corporation, or a person who acts or acted at the corporation's request as a director or officer of a body corporate of which the corporation is or was a shareholder or creditor, and his heirs and personal representatives, against liability incurred by him: (1) in his capacity as a director or officer of the corporation, except when the liability relates to his failure to act honestly and in good faith with a view to the best interests of the corporation, or (2) in his capacity as a director or officer of another body corporate if he acts or acted in that capacity at the corporation's request; except where the liability relates to his failure to act honestly and in good faith with a view to the best interests of the body corporate. The Registrant's By-Laws provide that no director of the Registrant shall be liable for the acts, receipts, neglects or defaults of any other director or officer or employee, or for joining in any receipt or other act for conformity, or for any loss, damage or expense happening to the Registrant through the insufficiency or deficiency of title to any property acquired for or on behalf of the Registrant, or for the insufficiency or deficiency of any security in or upon which any of the moneys of the Registrant shall be invested, or for any loss or damage arising from the bankruptcy, insolvency or tortuous acts of any person with whom any of the moneys, securities or effects of the Registrant are deposited, or for any loss occasioned by any error of judgement or oversight on his part, or for any other loss, damage or misfortune whatever which shall happen in the execution of the duties of his office or in relation thereto, unless the same are occasioned by his own willful neglect or default or from any breach of his duty to act in accordance with the Business Corporations Act and the regulations thereunder. The Registrant's By-Laws provide that subject to the limitations contained in the Business Corporations Act, and to the extent he is otherwise fairly and reasonably entitled thereto, the Registrant shall indemnify a director or officer, a former director or officer, or a person who acts or acted at the Registrant's request as a director or officer of a body corporate of which the Registrant is or was a shareholder or creditor (or a person who undertakes or has undertaken any liability on behalf of the Registrant or any such body corporate) and his heirs and legal representatives, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by him in respect of any civil, criminal or administrative action or proceeding to which he is made a party by reason of being or having been a director or officer of the Registrant or such body corporate, if (1) he acted honestly and in good faith with a view to the best interests of the Registrant; and (2) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, he had reasonable grounds for believing that his conduct was lawful. 3 The Registrant's By-Laws also provide that subject to the limitations contained in the Business Corporations Act, the Registrant may purchase and maintain insurance for the benefit of its directors and officers as the board may from time to time determine. Furthermore, the Registrant's By-Laws provide that directors may rely upon the accuracy of any statement of fact represented by an officer of the Registrant to be correct or upon statements in a written report of the auditor of the Registrant and shall not be responsible or held liable for any loss or damage resulting from the paying of any dividends or otherwise acting in good faith upon any such statement. Item 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. Item 8. EXHIBITS The Exhibit Index immediately preceding the exhibits is incorporated herein by reference. Item 9. UNDERTAKINGS 1. 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; (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 the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering rage may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum 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 (i) and (ii) do not apply if the registration statement is on Form S-3 or Form S-8, and the information required to be included in a post-effective amendment by those paragraphs 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 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. 4 (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. 2. 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 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. 3. 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 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. 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 Franklin, Massachusetts on March 28, 2001. PLC SYSTEMS INC. By: /s/ Mark R. Tauscher ------------------------------------- Mark R. Tauscher President and Chief Executive Officer POWER OF ATTORNEY AND SIGNATURES We, the undersigned officers and directors of PLC Systems Inc., hereby severally constitute and appoint Mark R. Tauscher and James G. Thomasch, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said Registration Statement, and generally to do all such things in our names and behalf in our capacities as officers and directors to enable PLC Systems Inc. to comply with all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by said attorneys, or any of them, to said Registration Statement and any and all amendments thereto. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT, THIS REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE TITLE DATE /s/ Mark R. Tauscher President, Chief Executive Officer and March 28, 2001 - --------------------------- Director (Principal Executive Officer) Mark R. Tauscher /s/ James G. Thomasch Chief Financial Officer and Treasurer March 28, 2001 - --------------------------- (Principal Financial Officer and James G. Thomasch Principal Accounting Officer) /s/ Edward H. Pendergast Chairman of the Board of Directors March 28, 2001 - --------------------------- Edward H. Pendergast /s/ Kevin J. Dunn Director March 28, 2001 - --------------------------- Kevin J. Dunn /s/ Benjamin Holmes Director March 28, 2001 - --------------------------- Benjamin Holmes /s/ Alan H. Magazine Director March 28, 2001 - --------------------------- Alan H. Magazine /s/ H.B. Brent Norton, M.D. Director March 28, 2001 - --------------------------- H.B. Brent Norton, M.D. /s/ Kenneth J. Pulkonik Director March 28, 2001 - --------------------------- Kenneth J. Pulkonik /s/ Robert I. Rudko, Ph.D. Director March 28, 2001 - --------------------------- Robert I. Rudko, Ph.D. /s/ Roberts A. Smith, Ph.D. Director March 28, 2001 - --------------------------- Roberts A. Smith, Ph.D.
6 EXHIBIT INDEX EXHIBIT NUMBER DESCRIPTION 4.1 (1) Certificate of Incorporation of the Registrant. 4.2 (2) Articles of Continuance of the Registrant. 4.3 (3) By-Laws of the Registrant. 4.4 (4) Specimen Certificate for Common Stock of the Registrant. 5.1 Opinion of Anton Campion Macdonald and Oyler. 23.1 Consent of Anton Campion Macdonald and Oyler (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP. 24.1 Power of Attorney (included in the signature pages of this Registration Statement). (1) Incorporated by reference to Exhibit 3a to the Registrant's Registration Statement on Form S-1, as amended (File No. 333-48340). (2) Incorporated by reference to Exhibit 3.2 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1999. (3) Incorporated by reference to Exhibit 3.3 to the Registrant's Annual Report on Form 10-K for the year ended December 31, 1999. (4) Incorporated by reference to Exhibit 4c to the Registrant's Registration Statement on Form S-1, as amended (File No. 333-48340). 7 EX-5.1 2 a2042337zex-5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 [Letterhead of Anton Campion Macdonald Oyler] March 28, 2001 PLC Systems Inc. 10 Forge Park Franklin, MA 02038 Dear Sirs: RE: REGISTRATION STATEMENT ON FORM S-8 We have acted as Yukon Territory counsel on behalf of PLC Systems Inc., a corporation organized under the laws of the Yukon Territory, Canada (the "Company"), in connection with the registration of 400,000 shares of Common Stock of the Company (the "Common Stock") issuable under the Company's 2000 Non-qualified Performance and Retention Equity Plan (the "Plan"). In connection therewith, we have examined, among other things, the Registration Statement on Form S-8 (the "Registration Statement") proposed to be filed by the Company with the Securities and Exchange Commission on or about March 28, 2001. We have also examined the proceedings and other actions taken by the Company in connection with the authorization of the shares of Common Stock issuable under the Plan and such other matters as we deemed necessary for purposes of rendering this opinion. Based upon the foregoing, and in reliance thereon, we are of the opinion, as of the date hereof, that the shares of Common Stock issuable under the Plan, when issued, delivered and paid for in accordance with the Plan and in the manner described in the Registration Statement, will be validly issued, fully paid and non-assessable. In rendering this opinion we express no opinion as to the laws of any jurisdiction other than the laws of the Yukon Territory. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the General Rules and Regulations of the Securities and Exchange Commission. Yours truly, ANTON CAMPION MACDONALD OYLER /s/ Gareth C. Howells Gareth C. Howells EX-23.2 3 a2042337zex-23_2.txt EXHIBIT 23.2 EXHIBIT 23.2 Consent of Independent Auditors We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 2000 Non-qualified Performance and Retention Equity Plan of PLC Systems Inc. for the registration of 400,000 shares of its common stock, of our report dated February 18, 2000, except for Note 12, as to which the date is March 28, 2000, with respect to the consolidated financial statements and schedule of PLC Systems Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1999, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Ernst & Young LLP Boston, Massachusetts March 27, 2001 -----END PRIVACY-ENHANCED MESSAGE-----