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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 25, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ESCALON MEDICAL CORP.
(Exact name of registrant as specified in its charter)
Delaware 33-0272839
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
351 East Conestoga Road
Wayne, Pennsylvania 19087
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(Address of Principal Executive Offices) (Zip Code)
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ESCALON MEDICAL CORP.
1999 EQUITY INCENTIVE PLAN
AND
ESCALON MEDICAL CORP.
EQUITY INCENTIVE PLAN FOR
EMPLOYEES OF SONOMED, INC.
(Full titles of plans)
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Richard J. DePiano
Chairman and Chief Executive Officer
Escalon Medical Corp.
351 East Conestoga Road
Wayne, Pennsylvania 19087
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(Name and address of agent for service)
(610) 688-6830
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(Telephone number, including area code,
of agent for service)
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Copy to:
Kathleen M. Shay, Esquire
Duane, Morris & Heckscher LLP
4200 One Liberty Place
Philadelphia, Pennsylvania 19103-7396
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered(1) price per share(2) offering price(2) registration fee
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Common Stock, 565,000 shares $2.88 $1,627,200 $429.58
par value $.001
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(1) This registration statement also registers such additional shares as
may be required to be issued under the Escalon Medical Corp. 1999
Equity Incentive Plan and the Escalon Medical Corp. Equity Incentive
Plan for Employees of Sonomed, Inc. in the event of a stock dividend,
reverse stock split, split-up, reclassification and/or other similar
event.
(2) Pursuant to paragraph (h) of Rule 457, the proposed maximum offering
price per share and the proposed maximum aggregate offering price have
been computed on the basis of $2.88 per share, the average of the high
and low sales prices of the Common Stock of the Company on the Nasdaq
National Market on February 18, 2000, which is a day on which the
Common Stock traded that is within five business days prior to the date
of filing.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following material is incorporated herein by reference:
(a) The Annual Report on Form 10-K of Escalon Medical Corp. (the
"Company") for the fiscal year ended June 30, 1999 as filed by the Company with
the Securities and Exchange Commission (the "Commission") on September 22, 1999.
(b) The Company's Preliminary Proxy Statement on Schedule 14A dated
October 11, 1999 as filed by the Company with the Commission on September 30,
1999.
(c) The Company's Definitive Proxy Statement on Schedule 14A dated
October 11, 1999 as filed by the Company with the Commission on October 12,
1999.
(d) The Company's Amended Current Report on Form 8-K/A dated August 13,
1999 as filed by the Company with the Commission on October 19, 1999.
(e) The Company's Quarterly Report on Form 10-Q dated November 11, 1999
as filed by the Company with the Commission on November 15, 1999.
(f) The Company's Current Report on Form 8-K dated November 17, 1999 as
filed by the Company with the Commission on November 19, 1999.
(g) The Company's Current Report on Form 8-K dated January 14, 2000 as
filed by the Company with the Commission on January 19, 2000.
(h) The Company's Quarterly Report on Form 10-Q dated February 2, 2000
a filed by the Company with the Commission on February 11, 2000.
(i) The description of the Company's Common Stock set forth in the
Company's Registration Statement on Form 8-A filed by the Company with the
Commission under the Securities and Exchange Act of 1934, as amended, on
September 30, 1993.
All reports or other documents filed pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of this Registration Statement, in each case filed
by the Company prior to the filing of a post-effective amendment that indicates
that all securities offered have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
reports and documents. Any statement contained in a document incorporated or
deemed to be incorporated herein by reference 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 is deemed to be incorporated herein by reference, 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.
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ITEM 4. DESCRIPTION OF SECURITIES.
No answer to this item is required because the class of securities to
be offered is registered under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The financial statements and schedules of the Company for the years
ended June 30, 1999 and 1998 incorporated by reference in this Registration
Statement have been audited by Parente, Randolph, Orlando, Carey & Associates
LLP, independent public accountants, as indicated in its report with respect
thereto and such financial statements and schedules are incorporated by
reference herein in reliance upon the authority of such firm as an expert in
accounting and auditing.
The validity of the issuance of the shares of Common Stock registered
hereby will be passed upon for the Company by Duane, Morris & Heckscher LLP,
Philadelphia, Pennsylvania. As of November 30, 1999, partners of Duane, Morris &
Heckscher LLP beneficially owned 81,656 shares of the Company's outstanding
Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation 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 the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another 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 the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person 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 the
person's conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon plea of nolo contendere or
its equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which the person 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 reasonable cause to believe that the
person's conduct was unlawful.
In the case of an action or suit by or in the right of the corporation
to procure a judgment in its favor, Section 145 of the DGCL empowers a
corporation 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 reason of
the fact that the person is or was acting in any of the capacities set forth
above against expenses (including attorneys' fees) actually and reasonably
incurred by the person in connection with the defense or settlement of such
action or suit if the person acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests
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of the corporation, except that indemnification is not permitted in respect of
any claim, issue or matter as to which such person is 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 determines 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 deems proper.
Section 145 of the DGCL further provides that a Delaware corporation is
required to indemnify a director, officer, employee or agent against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with any action, suit or proceeding or in defense of any claim, issue
or matter therein as to which such person has been successful on the merits or
otherwise; that indemnification provided for by Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled;
that indemnification provided for by Section 145 shall, unless otherwise
provided when authorized or ratified, continue as to a person who has ceased to
be a director, officer, employee or agent and shall inure to the benefit of such
person's heirs, executors and administrators and empowers the corporation to
purchase and maintain insurance on behalf of a director or officer against any
liability asserted against him or her and incurred by him or her in any such
capacity or arising out of his or her status as such whether or not the
corporation would have the power to indemnify him or her against such liability
under Section 145. A Delaware corporation may provide indemnification only as
authorized in the specific case upon a determination that indemnification of the
director, officer, employee or agent is proper in the circumstances because he
or she has met the applicable standard of conduct. Such determination is to be
made (i) by the board of directors by a majority vote of a quorum consisting of
directors who were not party to such action, suit or proceeding, even though
less than a quorum, (ii) if there are no such directors or if such directors so
direct, by independent legal counsel in a written opinion or (iii) by the
stockholders.
The By-Laws of the Company require the Company to indemnify its
directors and officers to the fullest extent permitted by Delaware law,
provided, that the Company may modify the extent of such indemnification by
individual contracts with its directors and executive officers, and, provided,
further, that the Company will not be required to indemnify any director or
officer in connection with a proceeding initiated by such person unless the
proceeding was authorized by the Board of Directors. The By-Laws only provide
indemnification to directors, officers and anyone serving at the request of the
Company as a director, officer, employee or agent of another corporation. Also,
the By-Laws require the Company to advance expenses related to any proceeding
contingent on such persons' commitment to repay any advances unless it is
determined ultimately that such persons are entitled to be indemnified. Under
the By-Laws, the Company is permitted to indemnify its directors and officers
within the limits established by law and public policy, pursuant to an express
contract, bylaw provision, stockholder vote, vote of disinterested directors or
otherwise.
The Company intends to enter into indemnification agreements with
certain of its directors and officers, which will require the Company to, among
other things, indemnify such officers and directors to the fullest extent
permitted by Delaware law, and to advance to such directors and officers all
related expenses, subject to reimbursement if it is subsequently determined that
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indemnification is not permitted. Under such indemnification agreements, the
Company will also be required to indemnify and to advance all expenses incurred
by directors and officers seeking to enforce their rights under the
indemnification agreements.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
No answer to this item is required because no restricted securities are
to be reoffered or resold pursuant to this Registration Statement.
ITEM 8. EXHIBITS.
4.1 Escalon Medical Corp. 1999 Equity Incentive Plan.
4.2 Escalon Medical Corp. Equity Incentive Plan for Employees of Sonomed,
Inc.
5 Opinion of Duane, Morris & Heckscher LLP.
23.1 Consent of Duane, Morris & Heckscher LLP (included in their opinion
filed as Exhibit 5).
23.2 Consent of Parente, Randolph, Orlando, Carey & Associates LLP.
24 Power of Attorney (included on the signature pages hereto).
ITEM 9. UNDERTAKINGS.
The Company hereby undertakes:
(a) 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 of 1933 (the "Act");
(ii) to reflect in the prospectus any facts or events which,
individually or together, 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 percent change in the maximum aggregate offering price set forth in
the "Calculation of Registration Fee" table in the effective registration
statement; and
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(iii) to include any additional or changed material
information with respect to the plan of distribution;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this Item 9 do
not apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment is
incorporated by reference from periodic reports filed by the small business
issuer under the Exchange Act.
(b) For the purpose of determining any liability under the Act, to
treat each post-effective amendment as a new registration statement relating to
the securities offered therein, and the offering of such securities at that time
to be the initial bona fide offer thereof; and
(c) To file a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
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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 Wayne, Pennsylvania on January 28, 2000.
ESCALON MEDICAL CORP.
By: /s/ RICHARD J. DEPIANO
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Richard J. DePiano
Chairman and Chief Executive Officer
Know all men by these presents, that each person whose signature
appears below constitutes and appoints Richard J. DePiano and Douglas R.
McGonegal, and each or either of them, as such person's true and lawful
attorneys-in-fact and agents, with full power of substitution, for such person,
and in such person's name, place and stead, in any and all capacities to sign
any or all amendments or post-effective amendments to this Registration
Statement, 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 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 such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitutes, may lawfully
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 date indicated.
Signature Title Date
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/s/ RICHARD J. DEPIANO
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Richard J. DePiano Chairman and Chief Executive January 28, 2000
Officer and Director (principal
executive officer)
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Douglas R. McGonegal Vice President of Finance and January 28, 2000
Secretary (principal financial
and accounting officer)
/s/ JAY L. FEDERMAN, M.D.
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Jay L. Federman, M.D. Director January 28, 2000
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Signature Title Date
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/s/ FRED G. CHOATE
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Fred G. Choate Director January 28, 2000
/s/ WILLIAM KWAN
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William Kwan Director January 28, 2000
/s/ JEFFREY F. O'DONNELL
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Jeffrey F. O'Donnell Director January 28, 2000
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EXHIBIT INDEX
(PURSUANT TO ITEM 601 OF REGULATION S-K)
EXHIBIT NO. EXHIBIT REFERENCE
4.1 Escalon Medical Corp. 1999 Equity Incentive Plan Filed herewith
4.2 Escalon Medical Corp. Equity Incentive Plan for Filed herewith
Employees of Sonomed, Inc.
5 Opinion of Duane, Morris & Heckscher LLP. Filed herewith
23.1 Consent of Duane, Morris & Heckscher LLP (included in Filed herewith
their opinion filed as Exhibit 5).
23.2 Consent of Parente, Randolph, Orlando, Filed herewith
Carey & Associates LLP.
24 Power of Attorney (see page II-6 of this Registration Filed herewith
Statement).
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