As filed with the Securities and Exchange Commission on May 14, 2008
Registration No. 333-
| UNITED STATES |
| SECURITIES AND EXCHANGE COMMISSION |
| WASHINGTON, D.C. 20549 |
| __________________________ |
| |
| FORM S-8 |
| |
| REGISTRATION STATEMENT |
| UNDER |
| THE SECURITIES ACT OF 1933 |
| __________________________ |
| |
| VIKING SYSTEMS, INC. |
| (Exact name of registrant as specified in its charter) |
| Delaware | 86-0913802 |
| (State or other jurisdiction | (I.R.S. Employer Identification |
| of incorporation or organization) | Number) |
| 134 Flanders Road | 01581 |
| Westborough, MA | (Zip Code) |
| (Address of Principal Executive Office) | |
__________________________
| |
| 2008 Equity Incentive Plan |
| 2008 Non-Employee Directors’ Stock Option Plan |
| (Full title of the plans) |
| __________________________ |
| William C. Bopp |
| Chairman of the Board and Chief Executive Officer |
| Viking Systems, Inc. |
| 134 Flanders Road, Westborough, MA 01581 |
| (508) 366-8882 |
| (Name, address, including zip code, and telephone number, |
| including area code, of agent for service) |
| __________________________ |
Copies to: |
| P. Blake Allen, Esq. |
| Duane Morris LLP |
| 101 West Broadway, Suite 900 |
| San Diego, CA 92101 |
| (619) 744-2200 |
| __________________________ |
Indicate by check mark whether the registrant is a large accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer”, “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer o | Accelerated filer o |
| | |
Non-accelerated filer o (Do not check if smaller reporting company) | Smaller reporting company x |
CALCULATION OF REGISTRATION FEE |
Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share (2) | Proposed Maximum Aggregate Offering Price (2) | Amount of Registration Fee |
| Common Stock, $.001 par value | 8,220,000 shares | $.30 | $2,466,000 | $96.91 |
| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends, or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h) promulgated under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low prices of the Registrant's Common Stock as reported on the OTC Bulletin Board on March 28, 2008, ($.30). |
Title of Securities to be Registered | Amount to be Registered (1) | Proposed Maximum Offering Price Per Share (2) | Proposed Maximum Aggregate Offering Price (2) |
| Shares issuable pursuant to the 2008 Equity Incentive Plan | 6,720,000 | $.30 | $2,016,000 |
| Shares issuable pursuant to the 2008 Non-Employee Directors’ Stock Option Plan | 1,500,000 | $.30 | $450,000 |
| Proposed Maximum Aggregate Offering Price | 8,220,000 | $.30 | $2,466,000 |
PART I
INFORMATION REQUIRED IN THE
SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Plan, as specified in Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”). Such document(s) need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Securities Act Rule 424 in accordance with the Note to Part I of Form S-8. These documents and the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
VIKING SYSTEMS, 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”) by the Registrant, are incorporated herein by reference:
| | (a) | The Registrant's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2007, filed with the Commission on March 31, 2008. |
| | (b) | All other reports filed by the Registrant pursuant to Section 13(a) or 15(d) of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), since the end of the fiscal year covered by the annual report on Form 10-KSB referred to in paragraph (a) above. |
| | (c) | The description of the Registrant's Common Stock contained in the Registrant's Registration Statement filed under Section 12 of the Exchange Act, including any amendment or report filed for the purpose of updating such description. |
In addition, 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 have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or 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. Interest of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to officers, directors and other corporate agents in terms sufficiently broad to permit such indemnification under certain circumstances and subject to certain limitations. As permitted by Section 145 of the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation includes a provision that eliminates the personal liability of its directors for monetary damages for breach of their fiduciary duty as directors.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the bylaws of the Registrant provide that:
| · | The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful. |
| · | The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is not required by law. |
| · | The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification. |
| · | The Registrant will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s board of directors or brought to enforce a right to indemnification. |
| · | The rights conferred in the bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons. |
| · | The Registrant may not retroactively amend the bylaw provisions to reduce its indemnification obligations to directors, officers, employees and agents. |
The Registrant may enter into separate indemnification agreements with each of its directors and executive officers that provide the maximum indemnity allowed to directors and executive officers by Section 145 of the Delaware General Corporation Law and which allow for certain additional procedural protections. The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities.
These indemnification provisions and the indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
| Exhibit No. | Description |
| 5.1 | Opinion of Counsel of Duane Morris LLP |
| 23.1 | Consent of Independent Registered Public Accounting Firm, Squar, Milner, Peterson, Miranda & Williamson, LLP |
| 24.1 | Power of Attorney (see Page II-5) |
| 99.1 | 2008 Viking Systems, Inc. Equity Incentive Plan – Incorporated herein by reference from Registrant’s Schedule 14-C Information Statement dated April 10, 2008. |
| 99.2 | 2008 Viking Systems, Inc. Non-Employee Directors’ Stock Option Plan – Incorporated herein by reference from Registrant’s Schedule 14-C Information Statement dated April 10, 2008. |
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 the 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 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.
(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 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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirement 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 San Diego, State of California on May 14, 2008.
| | VIKING SYSTEMS, INC. |
| | |
| | By: /s/ William C. Bopp |
| | Chairman of the Board and |
| | Chief Executive Officer |
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Viking Systems, Inc. hereby severally constitute and appoint William C. Bopp, Robert F. Mathews and each and any one of them his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, 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 other 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 connection therewith, 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 their or his or her substitutes or substitute, may lawfully 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 |
/s/ William C. Bopp | Chairman of the Board and Chief Executive Officer (Principal Executive Officer) | May 14, 2008 |
/s/ Robert F. Mathews | Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | May 14, 2008 |
/s/ John Jed Kennedy | President, Chief Operating Officer and Director | May 14, 2008 |
/s/ J. Winder Hughes | Director | May 14, 2008 |
/s/ William T. Tumber | Director | May 14, 2008 |
EXHIBIT INDEX
| Exhibit No. | Description |
| 5.1 | Opinion of Counsel of Duane Morris LLP |
| 23.1 | Consent of Independent Registered Public Accounting Firm, Squar, Milner, Peterson, Miranda & Williamson, LLP |
| 24.1 | Power of Attorney (see Page II-5) |
| 99.1 | 2008 Viking Systems, Inc. Equity Incentive Plan – Incorporated herein by reference from Registrant’s Schedule 14-C Information Statement dated April 10, 2008. |
| 99.2 | 2008 Viking Systems, Inc. Non-Employee Directors’ Stock Option Plan – Incorporated herein by reference from Registrant’s Schedule 14-C Information Statement dated April 10, 2008. |
| | |
Exhibits
