-----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, NY1MWHsKrXI/3jt3frK6KPuLSiusAZWeeq9cJCyDeEg73tXyuzROfwBhqyawxT3n GMjw5/tJ/+o+cijh4CSptQ== 0001012870-98-001652.txt : 19980623 0001012870-98-001652.hdr.sgml : 19980623 ACCESSION NUMBER: 0001012870-98-001652 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19980622 EFFECTIVENESS DATE: 19980622 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: SYMPHONIX DEVICES INC CENTRAL INDEX KEY: 0000930481 STANDARD INDUSTRIAL CLASSIFICATION: ORTHOPEDIC, PROSTHETIC & SURGICAL APPLIANCES & SUPPLIES [3842] IRS NUMBER: 770376250 STATE OF INCORPORATION: CA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-57405 FILM NUMBER: 98651811 BUSINESS ADDRESS: STREET 1: 3047 ORCHARD PKWY CITY: SAN JOSE STATE: CA ZIP: 95134-2024 BUSINESS PHONE: 4082320710 MAIL ADDRESS: STREET 1: 3047 ORCHARD PKWY CITY: SAN JOSE STATE: CA ZIP: 95134-2024 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on June 22, 1998 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ---------------------- SYMPHONIX DEVICES, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ---------------------- DELAWARE 77-0376250 -------------------- ---------- (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER) 2331 ZANKER ROAD SAN JOSE, CA 95131-1109 (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) ---------------------- AMENDED AND RESTATED 1994 STOCK OPTION PLAN 1997 EMPLOYEE STOCK PURCHASE PLAN (FULL TITLE OF THE PLANS) ---------------------- HARRY S. ROBBINS CHIEF EXECUTIVE OFFICER SYMPHONIX DEVICES, INC. 2331 ZANKER ROAD SAN JOSE, CA 95131-1109 (408) 232-0710 (NAME, ADDRESS AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) ---------------------- Copy to: JOHN T. SHERIDAN, ESQ. WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 PAGE MILL ROAD PALO ALTO, CA 94304-1050 (650) 493-9300 ---------------------- ================================================================================ CALCULATION OF REGISTRATION FEE ================================================================================
PROPOSED PROPOSED TITLE OF MAXIMUM MAXIMUM MAXIMUM SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF TO BE TO BE PRICE PER OFFERING REGISTRATION REGISTERED REGISTERED SHARE PRICE FEE - -------------------------------------------------------------------------------------------------------- Common Stock 528,032 shares(1) $ 1.29(2) $ 681,162(3) $ 201 $0.001 par value Common Stock 430,928 shares(4) $ 12.00(5) $ 5,171,136 $ 1,526 $0.001 par value Common Stock, 75,000 shares(6) $ 10.20 $ 765,000 $ 226 $0.001 par value TOTAL 1,033,960 shares $ 1,953 ========================================================================================================
(1) For the sole purpose of calculating the registration fee, the number of shares to be registered under this Registration Statement has been broken down into three subtotals. This subtotal represents the sum of shares issuable upon exercise of presently outstanding options (options that have been granted as of the date of this Registration Statement) issued under the Registrant's Amended and Restated 1994 Stock Option Plan (the "Stock Plan"). (2) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the total registration fee. Computation based on the weighted average exercise price (rounded to the nearest cent) at which the options outstanding whose exercise will result in the issuance of the shares being registered may be exercised. (3) Calculated in accordance with Rule 457(h) based on the aggregate exercise price for all presently outstanding options described in note 1 above. (4) This subtotal represents the sum of shares issuable upon exercise of options that have not yet been granted under the Stock Plan as of the date of this Registration Statement. (5) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the total registration fee. Computation based upon the average of the high and low prices of the Registrant's Common Stock as reported by The Nasdaq Stock Market on June 16, 1998. (6) This subtotal represents the number of shares authorized to be issued under the Registrant's 1997 Employee Stock Purchase Plan (the "Purchase Plan"). (7) Estimated in accordance with Rule 457(h) solely for the purpose of calculating the total registration fee. Computation based upon 85% (see explanation in following sentence) of the average of the high and low prices of the Common Stock as reported by The Nasdaq Stock Market on June 16, 1998. Pursuant to the Purchase Plan, which plan is incorporated by reference herein, the purchase price of a share of Common Stock shall be an amount equal to 85% of the fair market value of a share of Common Stock on the Enrollment Date or the Exercise Date (as defined in such plan), whichever is lower. ii SYMPHONIX DEVICES, INC. REGISTRATION STATEMENT ON FORM S-8 PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE --------------------------------------- There are hereby incorporated by reference in this Registration Statement the following documents and information heretofore filed by Symphonix Devices, Inc. (the "Registrant") with the Securities and Exchange Commission: (1) The Registrant's Registration Statement on Form S-1 (file no. 333- 40339) under the Securities Act of 1933, as amended (the "Securities Act"), and as declared effective on February 13, 1998. (2) The description of the Registrant's Common Stock contained in the Registrant's Registration Statement on Form 8-A filed pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and as declared effective on February 13, 1998 (3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 1998. (4) All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date 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 this Registration Statement and to be 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. -------------------------------------- Certain members of Wilson Sonsini Goodrich & Rosati, Professional Corporation, and investment partnerships of which such persons are partners beneficially own 18,169 shares of the Registrant's Common Stock. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. ----------------------------------------- Section 145(a) of the Delaware General Corporation Law (the "DGCL") provides in relevant part that "a corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful." With respect to derivative actions, Section 145(b) of the DGCL provides in relevant part that "[a] corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor . . . [by reason of his service in one of the capacities specified in the preceding sentence] against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper." The Registrant's Restated Certificate of Incorporation provides that to the fullest extent permitted by the DGCL, no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director. The Restated Certificate of Incorporation also provides that no amendment or repeal of such provision shall apply to or have any effect on the right to indemnification permitted thereunder with respect to claims arising from acts or omissions occurring in whole or in part before the effective date of such amendment or repeal whether asserted before or after such amendment or repeal. The Registrant's Bylaws provide that the Registrant shall indemnify to the fullest extent authorized by law each of its directors, officers, employees and other agents against expenses actually and reasonably incurred in connection with any proceeding arising by reason of the fact that such person is or was an agent of the corporation. The Registrant has entered into indemnification agreements with its directors and executive officers, in addition to the indemnification provided for in the Registrant's Bylaws, and intends to enter into indemnification agreements with any new directors or executive officers in the future. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. ----------------------------------- Not applicable ITEM 8. EXHIBITS. ---------
Exhibit Number Description - ------ ---------------------------------------------------------------------- 4.1* Amended and Restated 1994 Stock Option Plan and form of agreement thereunder. 4.2* 1997 Employee Stock Purchase Plan and form of agreement thereunder. 5.1 Opinion of counsel as to the legality of securities being registered. 23.1 Consent of counsel (contained in Exhibit 5.1). 23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants. 24.1 Power of Attorney (see page II-4).
- ------------------- * Incorporated by reference to exhibits filed with the Registrant's Registration Statement on Form S-1 (file no. 333-40339), and as declared effective on February 13, 1998 II-2 ITEM 9. UNDERTAKINGS. ------------- A. The 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. 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 Corporation Law, the Registrant's Restated Certificate of Incorporation, the Registrant's Bylaws or the Registrant's indemnification agreements, the Registrant has been informed 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 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 question has already 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 San Jose, State of California, on this 22nd day of June, 1998. SYMPHONIX DEVICES, INC. By: /s/ Harry S. Robbins --------------------------------------- Harry S. Robbins President and Chief Executive Officer (Principal Executive Officer) POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Harry S. Robbins and Alfred G. Merriweather, jointly and severally, as his or her attorneys-in-fact, with full power of substitution in each, 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 all 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 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 has been signed below by the following persons in the capacities and on the dates indicated.
Signature Title Date - --------- --------------------------------------------- --------------- /s/ Harry S. Robbins President, Chief Executive Officer and June 22, 1998 - --------------------------- Chairman of the Board of Directors (Principal (Harry S. Robbins) Executive Officer) /s/ Alfred G. Merriweather Vice President of Finance and Chief Financial June 22, 1998 - --------------------------- Officer (Principal Financial and Accounting (Alfred G. Merriweather) Officer) Director - --------------------------- (Geoffrey R. Ball) /s/ B. J. Cassin Director June 22, 1998 - --------------------------- (B. J. Cassin) /s/ Terry Gould Director June 22, 1998 - --------------------------- (Terry Gould) /s/ Michael J. Levinthal Director June 22, 1998 - --------------------------- (Michael J. Levinthal) /s/ Petri T. Vainio Director June 22, 1998 - --------------------------- (Petri T. Vainio)
II-4 INDEX TO EXHIBITS
Exhibit Number Description - ------ ---------------------------------------------------------------------- 4.1* Amended and Restated 1994 Stock Option Plan and form of agreement thereunder. 4.2* 1997 Employee Stock Purchase Plan and form of agreement thereunder. 5.1 Opinion of counsel as to legality of securities being registered. 23.1 Consent of counsel (contained in Exhibit 5.1). 23.2 Consent of Coopers & Lybrand L.L.P., Independent Accountants. 24.1 Power of Attorney (see page II-4).
- -------------- * Incorporated by reference to exhibits filed with the Registrant's Registration Statement on Form S-1 (file no. 333-40339), and as declared effective on February 13, 1998. EX-5.1 2 OPINION OF COUNSEL EXHIBIT 5.1 ----------- June 22, 1998 Symphonix Devices, Inc. 2331 Zanker Road San Jose, CA 95131-1109 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 June 22, 1998 (the "Registration Statement"), in connection with the registration under the Securities Act of 1933, as amended, of 1,033,960 shares of your Common Stock, par value $0.001 per share (the "Shares"), (i) 528,032 shares of which are subject to currently outstanding options not yet granted under the Amended and Restated 1994 Stock Option Plan (the "Stock Plan"), (ii) 430,928 shares of which are to be issued pursuant to outstanding options under the Stock Plan, and (iii) 75,000 shares of which are to be issued pursuant to the 1997 Employee Stock Purchase Plan (collectively, the "Plans"). As your 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 issuance and sale of the Shares pursuant to the Plans. It is our opinion that, when issued and sold in the manner described in the Plans and pursuant to the agreements which accompany each grant under the Plans, 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 and any amendments thereto. Very truly yours, WILSON SONSINI GOODRICH & ROSATI /s/ Wilson Sonsini Goodrich & Rosati EX-23.2 3 CONSENT OF COOPERS & LYBRAND EXHIBIT 23.2 ------------ CONSENT OF INDEPENDENT ACCOUNTANTS We consent to the incorporation by reference in this Registration Statement of Symphonix Devices, Inc. on Form S-8 of our report dated January 9, 1998, on our audits of the consolidated financial statements of Symphonix Devices, Inc. as of December 31, 1997 and 1996, and for each of the three years in the period ended December 31, 1997, which report is included in the Registration Statement (Form S-1 No. 333-40339). COOPERS & LYBRAND L.L.P. San Jose, California June 19, 1998 -----END PRIVACY-ENHANCED MESSAGE-----