-----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, VPZ4WlHCqDHmFCCUJgj+y4zKG09mBsD0TtM7M/EvTriIrWb2LBIxGfp9EdIrCtxQ vaCymGJL8nqQ4HhU4NZBXg== 0000891618-97-003184.txt : 19970807 0000891618-97-003184.hdr.sgml : 19970807 ACCESSION NUMBER: 0000891618-97-003184 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970806 EFFECTIVENESS DATE: 19970806 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: OCULAR SCIENCES INC /DE/ CENTRAL INDEX KEY: 0000882484 STANDARD INDUSTRIAL CLASSIFICATION: OPHTHALMIC GOODS [3851] IRS NUMBER: 942985696 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-32999 FILM NUMBER: 97652581 BUSINESS ADDRESS: STREET 1: 475 ECCLES AVE CITY: S SAN FRANCISCO STATE: CA ZIP: 94080 MAIL ADDRESS: STREET 1: 475 ECCLES AVE CITY: S SAN FRANCISCO STATE: CA ZIP: 94080 FORMER COMPANY: FORMER CONFORMED NAME: O S I CORP DATE OF NAME CHANGE: 19970506 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on August 6, 1997 Registration No. 333-__________ - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 OCULAR SCIENCES, INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 94-2985696 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) 475 ECCLES AVENUE SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 583-1400 (Address and Telephone Number of Registrant's Principal Executive Offices) 1989 STOCK OPTION PLAN 1997 EQUITY INCENTIVE PLAN 1997 DIRECTORS STOCK OPTION PLAN 1997 EMPLOYEE STOCK PURCHASE PLAN (Full Title of the Plans) GREGORY E. LICHTWARDT CHIEF FINANCIAL OFFICER OCULAR SCIENCES, INC. 475 ECCLES AVENUE SOUTH SAN FRANCISCO, CALIFORNIA 94080 (650) 583-1400 (Name, Address and Telephone Number of Agent For Service) COPIES TO: David K. Michaels, Esq. Jody Hucko, Esq. Fenwick & West LLP Two Palo Alto Square Palo Alto, California 94306
CALCULATION OF REGISTRATION FEE (5) - ------------------------------------------------------------------------------------------------------------- AMOUNT PROPOSED PROPOSED MAXIMUM AMOUNT OF TO BE MAXIMUM OFFERING AGGREGATE OFFERING REGISTRATION TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE PRICE FEE - ------------------------------------------------------------------------------------------------------------- Common Stock, 2,948,174(1) $20.125(2) $59,332,002(2) $17,980 $0.001 par value Common Stock, 1,829,614(3) $ 3.04(4) $ 5,562,027 $ 1,686 $0.001 par value - -------------------------------------------------------------------------------------------------------------
(1) As of August 4, 1997, shares (i) available for issuance upon exercise of awards not yet granted under the 1997 Equity Incentive Plan (the "Incentive Plan") and the 1997 Directors Stock Option Plan (the "Directors Plan"), (ii) subject to outstanding options granted as of such date under the Incentive Plan and the Directors Plan and (iii) reserved for issuance under the 1997 Employee Stock Purchase Plan. (2) Estimated pursuant to Rule 457(h) and (c) solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Registrant's Common Stock on the Nasdaq National Market on August 5, 1997. (3) Shares subject to outstanding options as of August 4, 1997 under the 1989 Stock Option Plan. (4) Weighted average per share exercise price for such outstanding options pursuant to Rule 457(h)(1). (5) All values reflect the two-for-one split of the Registrant's outstanding Common Stock effective as of August 4, 1997. 2 OCULAR SCIENCES, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) the Registrant's prospectus filed pursuant to Rule 424(b) under the Securities Act of 1933, as amended (the "Securities Act"), that contains consolidated audited financial statements of the Registrant for the fiscal years ended December 31, 1995 and December 31, 1996. (b) the description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed under Section 12(g) of the Securities Exchange Act of 1934, as amended (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 securities registered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed incorporated by reference herein and to be a part hereof from the date of the 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 AND LIMITATION OF LIABILITY. As permitted by the Delaware General Corporation Law, the Registrant's Certificate of Incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases) or (iv) for any transaction from which the director derived an improper personal benefit. As permitted by the Delaware General Corporation Law, the Bylaws of the Registrant provide that (i) the Registrant is required to indemnify its directors and officers to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (ii) the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law, (iii) the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to certain very limited exceptions, (iv) the rights conferred in the Bylaws are not exclusive and (v) the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents. The Registrant has entered into indemnity agreements with each of its current directors and executive officers to give such directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant's Bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director, officer or employee of the Registrant regarding which indemnification is sought, nor is the Registrant aware of any threatened litigation that may result in claims for indemnification. 2 3 The indemnification provision in the Bylaws and the indemnity agreements entered into between the Registrant and its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant's directors and executive officers for liabilities arising under the Securities Act. As authorized by the Registrant's Bylaws, the Registrant, with approval by the Registrant's Board of Directors, has applied for, and expects to obtain, directors' and officers' liability insurance with a per claim and annual aggregate coverage limit of $30 million. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable.
ITEM 8. EXHIBITS. - ------- --------- 4.01 Registrant's Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 of the Form S-1, Registration No. 333-27421 originally filed with the Commission on May 19, 1997, as subsequently amended on June 4, 1997, July 2, 1997, July 15, 1997 and July 31, 1997 (the "Form S-1")) 4.02 Registrant's Certificate of Designation of Preferred Stock (incorporated herein by reference to Exhibit 3.02 of the Form S-1) 4.03 Form of Registrant's Restated Certificate of Incorporation to be effective upon the closing of the Registrant's initial public offering (incorporated herein by reference to Exhibit 3.03 of the Form S-1) 4.04 Registrant's Bylaws (incorporated herein by reference to Exhibit 3.04 of the Form S-1) 4.05 Registrant's 1989 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.01 of the Form S-1) 4.06 Registrant's 1997 Equity Incentive Plan and related documents (incorporated herein by reference to Exhibit 10.03 of the Form S-1) 4.07 Registrant's 1997 Directors Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.04 of the Form S-1) 4.08 Registrant's 1997 Employee Stock Purchase Plan and related documents (incorporated herein by reference to Exhibit 10.05 of the Form S-1) 5.01 Opinion of Fenwick & West LLP 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01) 23.02 Consent of KPMG Peat Marwick LLP, Independent Auditors 24.01 Power of Attorney (see page 5)
3 4 ITEM 9. UNDERTAKINGS. 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 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 in this Registration Statement; (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 paragraphs (1)(i) and (1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this 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. 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 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. 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 provisions discussed in Item 6 hereof, 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 hereby, 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 of 1933, 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 South San Francisco, State of California, on this 6th day of August, 1997. OCULAR SCIENCES, INC. By: /s/ John D. Fruth ------------------------------------- John D. Fruth, Chairman of the Board, President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and appoints John D. Fruth and Gregory E. Lichtwardt, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- PRINCIPAL EXECUTIVE OFFICER: /s/ John D. Fruth Chairman of the Board, President August 6, 1997 - ------------------------ and Chief Executive Officer John D. Fruth PRINCIPAL FINANCIAL OFFICER AND PRINCIPAL ACCOUNTING OFFICER: /s/ Gregory E. Lichtwardt Vice President, Finance, Chief August 6, 1997 - ------------------------ Financial Officer and Treasurer Gregory E. Lichtwardt ADDITIONAL DIRECTORS /s/ Edgar J. Cummins Director August 6, 1997 - ------------------------ Edgar J. Cummins
5 6 ADDITIONAL DIRECTORS (CONTINUED): Director - --------------------------- Terence M. Fruth /s/ William R. Grant Director August 6, 1997 - --------------------------- William R. Grant /s/ Daniel J. Kunst Director August 6, 1997 - --------------------------- Daniel J. Kunst /s/ Francis R. Tunney, Jr. Director August 6, 1997 - --------------------------- Francis R. Tunney, Jr.
6 7 EXHIBIT INDEX
Exhibit No. Description - ----------- ----------- 4.01 Registrant's Certificate of Incorporation (incorporated herein by reference to Exhibit 3.01 to the Form S-1) 4.02 Registrant's Certificate of Designation of Preferred Stock (incorporated herein by reference to Exhibit 3.02 of the Form S-1) 4.03 Form of Registrant's Restated Certificate of Incorporation to be effective upon the closing of the Registrant's initial public offering (incorporated herein by reference to Exhibit 3.03 of the Form S-1) 4.04 Registrant's Bylaws (incorporated herein by reference to Exhibit 3.04 of the Form S-1) 4.05 Registrant's 1989 Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.01 of the Form S-1) 4.06 Registrant's 1997 Equity Incentive Plan and related documents (incorporated herein by reference to Exhibit 10.03 of the Form S-1) 4.07 Registrant's 1997 Directors Stock Option Plan and related documents (incorporated herein by reference to Exhibit 10.04 of the Form S-1) 4.08 Registrant's 1997 Employee Stock Purchase Plan and related documents (incorporated herein by reference to Exhibit 10.05 of the Form S-1) 5.01 Opinion of Fenwick & West LLP 23.01 Consent of Fenwick & West LLP (included in Exhibit 5.01) 23.02 Consent of KPMG Peat Marwick LLP, Independent Auditors 24.01 Power of Attorney (see page 5)
7 EX-5.01 2 OPINION OF FENWICK & WEST LLP 1 EXHIBIT 5.01 [FENWICK & WEST LLP LETTERHEAD] August 6, 1997 Ocular Sciences, Inc. 475 Eccles Avenue South San Francisco, CA 94080 Gentlemen/Ladies: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement") to be filed by you with the Securities and Exchange Commission on or about August 6, 1997 in connection with the registration under the Securities Act of 1933, as amended, of an aggregate of 4,777,788 shares of your Common Stock (the "Stock") subject to issuance by you upon the exercise of (i) stock options granted by you under your 1989 Stock Option Plan, as amended (the "1989 Option Plan"), (ii) stock options, stock bonuses and restricted stock awards granted or to be granted by you under your 1997 Equity Incentive Plan (the "Incentive Plan"), (iii) stock options granted or to be granted by you under your 1997 Directors Stock Option Plan (the "Directors Option Plan") and (iv) purchase rights to be granted by you under your 1997 Employee Stock Purchase Plan (the "Purchase Plan") (collectively, with the 1989 Option Plan, Incentive Plan and Directors Option Plan, the "Plans"). In rendering this opinion, we also have examined the following: (1) the applicable prospectus associated with each of the Plans; (2) the minutes of meetings and actions by written consent of your stockholders and Board of Directors and the shareholders and Board of Directors of O.S.I. Corporation, your predecessor ("O.S.I."), that are contained in your minute books and the minute books of O.S.I. in our possession; (3) computer reports of stock options granted by O.S.I. in our possession, and a report of stock options issued by you and by O.S.I., prepared by you as of August 4, 1997 and provided to us; (4) your Registration Statement on Form S-1 (Registration Number 333-27421), together with copies of Exhibits 3.01-3.04, 10.01 and 10.03-10.05 filed therewith, as declared effective by the SEC on August 4, 1997; (5) your Registration Statement on Form 8-A (Commission File Number 000-22623), as declared effective by the SEC on July 28, 1997; and (6) a Management Certificate of even date herewith, duly executed and delivered by you. In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the genuineness of all signatures on original documents, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the legal capacity of all persons and entities, the lack of any undisclosed terminations, modifications, waivers or amendments to any documents reviewed by us and the due execution and delivery of all documents where due execution and delivery are prerequisites to the effectiveness thereof. As to matters of fact relevant to this opinion, we have relied solely upon our examination of the documents referred to above and have assumed the current accuracy and completeness of the information obtained from the documents referred to above. We have made no independent investigation or other attempt to verify the accuracy of any of such information or to determine the existence or non-existence of any other factual matters; however, we are not aware of any facts that would lead us to believe that the opinion expressed herein is not accurate. Based on the foregoing, it is our opinion that the 4,777,788 shares of the Stock that may be issued and sold by you upon, collectively, the exercise of the (i) stock options granted under the 1989 Option Plan, (ii) stock options, stock bonuses or restricted stock awards granted or to be granted under the Incentive Plan, (iii) stock options granted or to be granted under the Directors Option Plan, and (iv) purchase rights to be granted under the Purchase Plan, each when issued and sold in the manner referred to in the applicable Plan and the applicable prospectus associated with such Plan, will be validly issued, fully paid and nonassessable. We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the Prospectus constituting a part thereof and any amendments thereto. This opinion speaks only as of its date and is intended solely for your use as an exhibit to the Registration Statement for the purpose of the above sale of the Stock and is not to be relied upon for any other purpose. Very truly yours, /s/ Fenwick & West LLP ---------------------- FENWICK & WEST LLP EX-23.02 3 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.02 CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 pertaining to the 1989 Stock Option Plan, 1997 Equity Incentive Plan, 1997 Directors Stock Option Plan and 1997 Employee Stock Purchase Plan of Ocular Sciences, Inc. of our reports dated February 14, 1997, except for Notes 1 and 16 of the Notes to the Consolidated Financial Statements which are as of July 14, 1997, relating to the consolidated balance sheets of Ocular Sciences, Inc. as of December 31, 1995 and 1996, and the related consolidated statements of income, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 1996, and related schedule, which reports appear in the Registration Statement (Form S-1, No. 333-27421) and the related Prospectus, filed with the Securities and Exchange Commission. KPMG PEAT MARWICK LLP San Francisco, California August 5, 1997 -----END PRIVACY-ENHANCED MESSAGE-----