As filed with the Securities and Exchange Commission on January 27, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Varex Imaging Corporation
(Exact name of Registrant as specified in its charter)
| Delaware | 81-3434516 | |
| (State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) | |
1678 S. Pioneer Road, Salt Lake City, Utah 84104 (Address of Principal Executive Offices) (Zip Code) | ||
Varex Imaging Corporation 2017 Omnibus Stock Plan
Varex Imaging Corporation 2017 Employee Stock Purchase Plan
Varex Imaging Corporation 2016 Deferred Compensation Plan
Varex Imaging Corporation Frozen Deferred Compensation Plan
(Full title of the plans)
Kimberley E. Honeysett
Senior Vice President, General Counsel and Corporate Secretary
Varex Imaging Corporation
1678 S. Pioneer Road
Salt Lake City, Utah 84104
800-432-4422
(Name, address and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an 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. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||
| Non-accelerated filer | ☒ (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | |||
CALCULATION OF REGISTRATION FEE
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| Title of securities to be registered | Amount to be registered | Proposed maximum offering price per share | Proposed maximum aggregate offering price | Amount of registration fee | ||||
Common Stock, par value $0.01 per share | 6,700,000 shares(1)(2) | $27.145(3) | $181,871,500(3) | $21,078.91(3) | ||||
Common Stock, par value $0.01 per share | 1,000,000 shares(1)(4) | $27.145(3) | $27,145,000(3) | $3,146.11(3) | ||||
Deferred Compensation Obligations | $5,000,000(5) | N/A | $5,000,000 | $579.50(6) | ||||
Deferred Compensation Obligations | $3,000,000(7) | N/A | $3,000,000 | $347.70(6) | ||||
Total | 7,700,000 shares and $8,000,000 in deferred compensation obligations | $217,016,500 | $25,152.21 | |||||
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| (1) | Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement covers such additional and indeterminate number of shares of the common stock (“Common Stock”) of Varex Imaging Corporation (the “Registrant”) as may become issuable by reason of stock dividends, stock splits or similar transactions. |
| (2) | Represents the number of shares of Common Stock issuable pursuant to awards granted under the Registrant’s 2017 Omnibus Stock Plan (the “Omnibus Plan”). |
| (3) | Estimated solely for the purposes of determining the amount of the registration fee, in accordance with Rule 457(c) and 457(h) of the Securities Act, on the basis of the average of the high and low sales prices per share of the Common Stock on the “when issued” trading market as reported on the NASDAQ Global Select Market on January 23, 2017. |
| (4) | Represents the number of shares of Common Stock issuable pursuant to awards granted under the Registrant’s 2017 Employee Stock Purchase Plan (the “ESPP”). |
| (5) | The deferred compensation obligations being registered are offered under the Registrant’s 2016 Deferred Compensation Plan (the “DCP”), and are unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms and conditions of the Plan. |
| (6) | Calculated in accordance with Rule 457(h) of the Securities Act of 1933, as amended, solely for the purpose of calculating the registration fee. |
| (7) | The deferred compensation obligations being registered are offered under the Registrant’s Frozen Deferred Compensation Plan (the “Frozen DCP”), and are unsecured obligations of the Registrant to pay deferred compensation in the future in accordance with the terms and conditions of the Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I will be delivered to the participants in the Omnibus Plan, the ESPP, the DCP and the Frozen DCP covered by this Registration Statement as required by Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Securities and Exchange Commission (the “Commission”) as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents, which have been filed by the Registrant with the Commission, are hereby incorporated by reference in this Registration Statement:
| (a) | Registration Statement on Form 10 (Commission File No. 001-37860) initially filed on August 11, 2016, under the Securities and Exchange Act of 1934, as amended (the “Exchange Act”) relating to the Common Stock of the Registrant, as amended by Amendment No. 1 on October 11, 2016, Amendment No. 2 on December 8, 2016, Amendment No. 3 on December 30, 2016 and Amendment No. 4 on January 12, 2017 (as amended, the “Form 10”); and |
| (b) | The description of the Registrant’s Common Stock contained in the Form 10. |
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are deemed to be incorporated by reference into this Registration Statement and to be a part hereof from the respective dates of 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 subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such 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. |
In addition to the shares of Common Stock reserved under the Omnibus Plan and ESPP, this Registration Statement covers deferred compensation obligations that may be offered under the DCP and Frozen DCP. The following summary is qualified in its entirety by reference to the DCP document and Frozen DCP document, which have been previously filed as exhibits to the Registrant’s Registration Statement on Form 10.
Deferred compensation obligations under the DCP
The deferred compensation obligations issuable under the DCP represent the Registrant’s obligations to pay to participants in the DCP certain compensation amounts that the Participants have elected to defer under the DCP. The DCP is designed to allow a select group of management and highly compensated employees, including its executive officers, to defer receipt of a specified percentage of their base salaries (up to 50%) and its non-employee directors to defer receipt of their director fees (up to 100%). Further, the Registrant may make discretionary contributions on behalf of participants in the DCP. Deferred amounts will be unfunded and unsecured obligations
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and will be subject to the claims of the Registrant’s creditors. The payment of deferred compensation obligations will be funded by the Registrant’s general assets, which may be held in a rabbi trust for this purpose. Amounts deferred by a participant and any employer contributions will be credited to an unfunded bookkeeping account maintained on behalf of each participant. These amounts will be periodically adjusted for earnings and/or losses at a rate that is equal to the various hypothetical investment funds (also referred to as measurement funds) selected by the DCP administrator and elected by the participant. Participants may reallocate previously invested money among each of the available measurement funds on a daily basis.
Under the DCP, a participant will be permitted to make separate distribution elections with respect to each year’s deferrals. These distribution elections will include the ability to elect a single lump-sum payment or installment payments for up to 10 years following termination of employment. Deferrals also may be paid out prior to termination of employment in the event of a financial hardship or if the participant makes a short-term payout election.
The DCP became effective beginning with deferral elections made by eligible participants during the open enrollment period commencing November 1, 2016. In addition, upon completion of the separation of the Registrant from Varian Medical Systems, Inc. (“Varian”), all deferrals made under the Varian Medical Systems, Inc. 2005 Deferred Compensation Plan (“Varian DCP”) by those employees and non-employee directors of Varian that become employees or non-employee directors of Varex immediately after the separation and distribution will be assumed by the Registrant under the DCP. Deferrals under the Varian DCP made by persons who are not transferring to the Registrant will remain an obligation of the Varian DCP.
Deferred compensation obligations under the Frozen DCP
The deferred compensation obligations issuable under the Frozen DCP represent the Registrant’s obligations to pay to Participants certain compensation amounts that the Participants previously elected to defer under the Varian Medical Systems, Inc. Frozen Deferred Compensation Plan (the “Varian Frozen DCP”). Upon completion of the separation of the Registrant from Varian, all deferrals made by continuing employees under the Varian Frozen DCP will be assumed by the Registrant under the Frozen DCP. Deferrals under the Frozen DCP made by persons who are not continuing employees will not be assumed under the Frozen DCP and will remain an obligation of the Varian Frozen DCP. No new deferrals will be permitted under the Frozen DCP. In addition, no Registrant contributions will be credited on behalf of any participant in the Frozen DCP, other than those assumed from the Varian Frozen DCP.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
The Delaware General Corporation Law (the “DGCL”) authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties as directors, and the Registrant’s amended and restated certificate of incorporation will include such an exculpation provision. The Registrant’s amended and restated certificate of incorporation and bylaws will include provisions that indemnify, to the fullest extent allowable under the DGCL, the personal liability of directors or officers for monetary damages for actions taken as a director or officer of the Registrant, or for serving at the Registrant’s request as a director or officer or another position at another corporation or enterprise, as the case may be. The Registrant’s amended and restated certificate of incorporation and bylaws will also provide that the Registrant must indemnify and advance reasonable expenses to its directors and officers, subject to its receipt of an undertaking from the indemnified party as may be required under the DGCL. The Registrant’s amended and restated certificate of incorporation will expressly authorize the Registrant to carry directors’ and officers’ insurance to protect the Registrant, its directors, officers and certain employees for some liabilities.
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The limitation of liability and indemnification provisions that will be in the Registrant’s amended and restated certificate of incorporation and bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against the Registrant’s directors and officers, even though such an action, if successful, might otherwise benefit the Registrant and its stockholders. However, these provisions will not limit or eliminate the Registrant’s rights, or those of any stockholder, to seek non-monetary relief such as injunction or rescission in the event of a breach of a director’s duty of care. The provisions will not alter the liability of directors under the federal securities laws.
The Registrant has obtained director and officer liability insurance to cover liabilities directors and officers may incur in connection with their services to the Registrant.
| Item 7. | Exemption from Registration Claimed. |
Not Applicable.
| Item 8. | Exhibits. |
See the Exhibit Index on the page immediately following the signature pages to the Registration Statement, which Exhibit Index is incorporated herein by reference.
| 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:
(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 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 range 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 a 20% change in the maximum aggregate 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 (a)(1)(i) and (a)(1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 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) The 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,
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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.
(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 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.
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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 the City of Salt Lake City, State of Utah, on January 27, 2017.
| Varex Imaging Corporation | ||
| By: | /s/ Kimberley E. Honeysett | |
| Kimberley E. Honeysett | ||
Senior Vice President, General Counsel and Corporate Secretary | ||
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Kimberley E. Honeysett, Sunny S. Sanyal and Clarence R. Verhoef, as his or her true and lawful agent, proxy and attorney-in-fact, each acting alone with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 together with all schedules and exhibits thereto, (ii) act on, sign and file such certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, and (iii) take any and all actions which may be necessary or appropriate in connection therewith, granting unto such agents, proxies and attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing necessary or appropriate to be done, as fully for all intents and purposes as he or she might or could do in person, hereby approving, ratifying and confirming that all such agents, proxies and attorneys-in-fact, any of them or any of his or her or their substitute or substitutes, 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 dates indicated.
Name | Title | Date | ||
/s/ Sunny S. Sanyal Sunny S. Sanyal | President and Chief Executive Officer and Director (Principal Executive Officer) | January 27, 2017 | ||
/s/ Clarence R. Verhoef Clarence R. Verhoef | Senior Vice President and Chief Financial Officer (Principal Financial Officer) | January 27, 2017 | ||
/s/ Kevin B. Yankton Kevin B. Yankton | Corporate Controller (Chief Accounting Officer) | January 27, 2017 | ||
/s/ Elisha W. Finney Elisha W. Finney | Director | January 27, 2017 | ||
/s/ John W. Kuo John W. Kuo | Director | January 27, 2017 | ||
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Name | Title | Date | ||
/s/ Ruediger Naumann-Etienne Ruediger Naumann-Etienne | Director | January 27, 2017 | ||
/s/ Christine A. Tsingos Christine A. Tsingos | Director | January 27, 2017 | ||
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EXHIBIT INDEX
Exhibit Number | Description of Exhibit | |||
| 4.1 | Form of Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to Amendment No. 2 to Form 10 filed by the Registrant on December 8, 2016) | |||
| 4.2 | Form of Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to Amendment No. 2 to Form 10 filed by the Registrant on December 8, 2016) | |||
| 5.1* | Opinion of Orrick, Herrington & Sutcliffe LLP | |||
| 23.1* | Consent of Independent Registered Public Accounting Firm | |||
| 23.2* | Consent of Orrick, Herrington & Sutcliffe LLP (contained in Exhibit 5.1) | |||
| 24* | Power of Attorney (included as part of the signature pages of the Registration Statement) | |||
| 99.1* | Varex Imaging Corporation 2017 Omnibus Stock Plan | |||
| 99.2* | Varex Imaging Corporation 2017 Employee Stock Purchase Plan | |||
| 99.3 | Varex Imaging Corporation 2016 Deferred Compensation Plan (incorporated by reference to Exhibit 10.6 to Amendment No. 2 to Form 10 filed by the Registrant on December 8, 2016) | |||
| 99.4 | Varex Imaging Corporation Frozen Deferred Compensation Plan (incorporated by reference to Exhibit 10.7 to Amendment No. 2 to Form 10 filed by the Registrant on December 8, 2016) | |||
| * | Filed herewith. |
