-----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, EdNEtKicqBDeQGh0sG08+juTSq34xkfMOmnzMJ7CYeklxZlrM7RaS1buVa2WE782 ztbNpYQw0s4wpofuqWkhow== 0001047469-99-003373.txt : 19990205 0001047469-99-003373.hdr.sgml : 19990205 ACCESSION NUMBER: 0001047469-99-003373 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19990204 EFFECTIVENESS DATE: 19990204 FILER: COMPANY DATA: COMPANY CONFORMED NAME: GENERAL SURGICAL INNOVATIONS INC CENTRAL INDEX KEY: 0000890763 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 973170244 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-71799 FILM NUMBER: 99521566 BUSINESS ADDRESS: STREET 1: 10460 BUBB RD CITY: CUPERTINO STATE: CA ZIP: 95014 BUSINESS PHONE: 4158129740 MAIL ADDRESS: STREET 1: 3172A PORTER DRIVE CITY: PALO ALTO STATE: CA ZIP: 94304 S-8 1 S-8 As filed with the Securities and Exchange Commission on February 4, 1999 Registration No. 333-_____ - ------------------------------------------------------------------------ - ------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ GENERAL SURGICAL INNOVATIONS, INC. (Exact name of Registrant as specified in its charter) CALIFORNIA 94-3160456 (State of incorporation) (I.R.S. Employer Identification No.) 10460 BUBB ROAD CUPERTINO, CALIFORNIA 95014 (Address of principal executive offices) _______________________ 1992 STOCK OPTION PLAN WRITTEN COMPENSATION AGREEMENT DATED APRIL 6, 1998 (Full title of the Plan) _______________________ GREGORY D. CASCIARO CHIEF EXECUTIVE OFFICER GENERAL SURGICAL INNOVATIONS, INC. 10460 BUBB ROAD CUPERTINO, CALIFORNIA 95014 (408) 863-2500 (Name, address and telephone number, including area code, of agent for service) _______________________ Copy to: Maribeth Younger Venture Law Group 2800 Sand Hill Road Menlo Park, California 94025 (650) 854-4488
- ------------------------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- Proposed Proposed Amount Maximum Maximum Maximum of Amount to be Offering Price Aggregate Registration Title of Securities to be Registered Registered(1) Per Share Offering Price Fee - ------------------------------------------------------------------------------------------------------------- 1992 STOCK OPTION PLAN Common Stock, $0.001 par value. . . . 537,678 Shares $3.25(3) $1,747,454 (unissued) WRITTEN COMPENSATION AGREEMENT DATED APRIL 6, 1998 Common Stock, $0.001 par value. . . . 25,000 $4.00(2) $ 100,000 TOTAL 562,678 Shares(4) $1,847,454 $ 514
_______________________ (1) This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the plan being registered pursuant to this Registration Statement by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant's outstanding shares of Common Stock. (2) Computed in accordance with Rule 457(h) under the Securities Act of 1933 (the "Securities Act") solely for the purpose of calculating the registration fee. Computation based on the weighted average per share exercise price (rounded to nearest cent) of outstanding options under the referenced plan, the shares issuable under which are registered hereby. (3) Estimated in accordance with Rule 457(h) and 457(c) under the Securities Act solely for the purpose of calculating the registration fee. The computation with respect to unissued options is based upon the average of the high and low sale prices of the Common Stock as reported on the Nasdaq National Market on January 29, 1999. (4) This total represents (A) a 537,678 share increase in the shares reserved for issuance under the 1992 Stock Option Plan (the "Plan"), which increase was approved by the Registrant's Board of Directors at a meeting on September 29, 1998 and by the Registrant's shareholders at a meeting on November 19, 1998 (of the 537,678 shares being registered hereunder, no shares are subject to outstanding options and 537,678 are available for issuance) and (B) a 25,000 option grant for the purchase of shares of Common Stock outside of the Plan, which grant was approved by the Registrant's Board of Directors on April 6, 1998. An additional 1,616,990 shares were registered for issuance under the Plan pursuant to a previous registration statement on Form S-8 filed by the Registrant with the Commission on August 16, 1996, and an additional 900,000 shares were registered for issuance under the Plan pursuant to a previous registration statement on Form S-8 filed by the Registrant with the Commission on January 26, 1998, as amended June 30, 1998. -2- 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 hereby incorporated by reference: (a) The Registrant's Annual Report on Form 10-K for the fiscal year ended June 30, 1998, filed on September 28, 1998, pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), which contains audited financial statements for the Registrant's latest fiscal year for which such statements have been filed. (b) The Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1998, filed on November 16, 1998 pursuant to Section 13 of the Exchange Act. (c) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed with the Commission under Section 12 of the Exchange Act on May 3, 1996, 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 offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such documents. Item 4. DESCRIPTION OF SECURITIES. Not applicable. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Certain legal matters with respect to the shares will be passed upon by Venture Law Group, a Professional Corporation, Menlo Park, California. Mark B. Weeks, a director of Venture Law Group, is the Secretary of the Registrant. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Registrant's Articles of Incorporation eliminate the liability of a director for monetary damages to the fullest extent permissible under California law. In addition, the Articles of Incorporation authorize the Registrant to indemnify agents in excess of the indemnification otherwise permitted by Section 317 of the California Corporations Code (the "Code"), subject only to the limits in Section 204 of the Code, with respect to actions for breach of duty to the Registrant and its shareholders. The Bylaws of the Registrant provide that the Registrant shall to the maximum extent permitted by the Code indemnify directors and officers (and permits -3- the Registrant to indemnify other employees and agents) against expenses, judgments and other amounts reasonably incurred in connection with a proceeding because such person was or is an agent of the Registrant. The Bylaws also provide that the Registrant shall advance certain expenses in connection with indemnifying these persons, that the indemnification provision is not exclusive and that the Registrant may purchase directors and officers insurance. In addition, the Registrant has entered into indemnification agreements with certain of its officers and directors. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. Exhibit Number - -------- 4.2(1) Shareholder Rights Plan. 5.1 Opinion of Venture Law Group, a Professional Corporation 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Independent Accountants. 24.1 Powers of Attorney (see p. 7). _______________ (1) Incorporated by reference from exhibits filed in response to Item 2, "Exhibits," of the Company's Registration Statement on Form 8-A (Registration No. 000-28448), filed with the Commission on May 13, 1997. -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 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. 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 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. Insofar as the 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 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. [Signature Pages Follow] -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant, GENERAL SURGICAL INNOVATIONS, INC., a corporation organized and existing under the laws of the State of California, 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 Cupertino, State of California, on this 29th day of January, 1999. GENERAL SURGICAL INNOVATIONS, INC. By: /s/ Gregory D. Casciaro ---------------------------------- Gregory D. Casciaro Chief Executive Officer -6- POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Gregory D. Casciaro and Stephen J. Bonelli, jointly and severally, his or her attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, 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 as he or she might or could do in person, and ratifying and confirming all that the attorney-in-facts and agents, or his or her substitute or substitutes, may 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 /s/ Roderick A. Young - ----------------------------- Chairman of the Board of Directors January 29, 1999 Roderick A. Young /s/ Gregory D. Casciaro President, Chief Executive Officer - ----------------------------- and Director (Principal Executive January 29, 1999 Gregory D. Casciaro Officer) /s/ Stephen J. Bonelli Vice President of Finance and - ----------------------------- Administration and Chief Financial January 29, 1999 Stephen J. Bonelli Officer (Principal Financial and Accounting Officer) /s/ Thomas J. Fogarty, M.D. - ----------------------------- Director January 29, 1999 Thomas J. Fogarty, M.D. - ----------------------------- Director January 29, 1999 Dave Chonette /s/ Paul Goeld - ----------------------------- Director January 29, 1999 Paul Goeld /s/ James Sulat - ----------------------------- Director January 29, 1999 James Sulat - ----------------------------- Director January 29, 1999 Mark A. Wan
-7- INDEX TO EXHIBITS EXHIBIT NUMBER 4.2(1) Shareholder Rights Plan 5.1 Opinion of Venture Law Group, a Professional Corporation 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Independent Accountants 24.1 Powers of Attorney (see p. 7). _______________ (1) Incorporated by reference from exhibits filed in response to Item 2, "Exhibits," of the Company's Registration Statement on Form 8-A (Registration No. 000-28448), filed with the Commission on May 13, 1997. -8- EX-5.1 2 EXHIBIT 5.1 EXHIBIT 5.1 [LETTERHEAD] February 3, 1999 General Surgical Innovations, Inc. 10460 Bubb Road Cupertino, California 95014 REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") to be filed by you with the Securities and Exchange Commission (the "COMMISSION") on or about February 3, 1999 in connection with the registration under the Securities Act of 1933, as amended, of a total of 537,678 shares of your Common Stock (the "SHARES") reserved for issuance under the General Surgical Innovations, Inc. 1992 Stock Option Plan (the "Plan") and 25,000 shares issuable pursuant to the Written Compensation Agreement dated as of April 6, 1998 between the Company and Gregory D. Casciaro, (the "Agreement"). As your legal counsel in connection with this transaction, 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 the Shares under the Plan and the Agreement. It is our opinion that, when issued and sold in the manner referred to in the Plan and pursuant to the respective agreement which accompanies each grant under the Plan, and within the Agreement, the Shares 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 the prospectus constituting a part thereof, and in any amendment thereto. Very truly yours, VENTURE LAW GROUP A Professional Corporation /s/ Venture Law Group EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in the registration statement of General Surgical Innovations, Inc. on Form S-8 of our reports dated July 29, 1998, on our audits of the financial statements and financial statement schedule of General Surgical Innovations, Inc. as of June 30, 1998 and 1997, and for each of the three years in the period ended June 30, 1998, which report is included in the Annual Report on Form 10-K for the year ended June 30, 1998. PricewaterhouseCoopers LLP San Jose, California January 28, 1999 -----END PRIVACY-ENHANCED MESSAGE-----