As filed with the Securities and Exchange Commission on December 12, 2007
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
VIRTUAL RADIOLOGIC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 27-0074530
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification
Number)
5995 Opus Parkway, Suite 200
Minnetonka, Minnesota 55343
(Address of principal executive offices)
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Virtual Radiologic Corporation Equity Incentive Plan
Virtual Radiologic Corporation Non-Incentive Stock Option Agreements with
Nabil El-Hage, Andrew Hertzmark, Mark Jennings and Richard Nigon
(Full title of the plan and agreements)
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Sean Casey, M.D.
Chief Executive Officer
Virtual Radiologic Corporation
5995 Opus Parkway, Suite 200
Minnetonka, Minnesota 55343
(952) 392-1100
(Name, address and telephone number, including area code, of agent for service)
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Copies to
Daniel D. Rubino, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
(212) 728-8000
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CALCULATION OF REGISTRATION FEE
========================= ======================= ======================== ====================== ==================
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (1) offering price per aggregate offering registration fee
share price (2)
- ------------------------- ----------------------- ------------------------ ---------------------- ------------------
Common Stock $.001 par 613,020(3) $23.25(4) $14,252,715 $437.56
value per share
- ------------------------- ----------------------- ------------------------ ---------------------- ------------------
Common Stock Subject to 2,307,896(5) $1.00 - $23.00(6) $20,550,766 $630.91
Options, $.001 par
value per share
- ------------------------- ----------------------- ------------------------ ---------------------- ------------------
TOTAL 2,920,916 - $34,803,481 $1,068.47
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(1) This Registration Statement covers 2,800,916 shares of the common stock
of Virtual Radiologic Corporation (the "Company"), $0.001 par value per share
(the "Common Stock"), issuable pursuant to the Virtual Radiologic Corporation
Equity Incentive Plan (the "Plan") and 120,000 shares of Common Stock issuable
outside of the Plan pursuant to Non-Incentive Stock Option Agreements between
the Company and Messrs. Nabil El-Hage, Andrew Hertzmark, Mark Jennings, and
Richard Nigon (the "Agreements"). In addition, this Registration Statement
covers an indeterminable number of additional shares of Common Stock as may
hereafter be offered or issued pursuant to the Plan and the Agreements, to
prevent dilution resulting from stock splits, stock dividends or similar
transactions effected without receipt of consideration and
pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"). 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 two subtotals.
(2) Estimated solely for calculating the amount of the registration fee.
(3) This subtotal represents the portion of the shares available for issuance
under the Plan with respect to awards that have not yet been granted as of the
date of this Registration Statement.
(4) The registration fee has been calculated pursuant to paragraphs (c) and
(h) of Rule 457 under the Securities Act, based upon the price of $23.25 per
share, the average of the high and low prices of the Common Stock of the Company
on December 10, 2007 on the Nasdaq Global Market.
(5) This subtotal represents the registration of the portion of shares
issuable upon exercise of outstanding options granted under the Plan and the
Agreements as of the date of this Registration Statement.
(6) The per-share exercise prices for outstanding options under the Plan
and the Agreements range from $1.00 to $23.00.
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 Virtual Radiologic Corporation, a Delaware corporation
(the "Company"), are incorporated by reference into this Registration Statement:
(a) the Company's Prospectus filed on November 15, 2007, pursuant to Rule
424(b) under the Securities Act, in connection with the Company's Registration
Statement on Form S-1, Registration No. 333-136504, filed on August 11, 2006, as
amended by Amendments Nos. 1, 2, 3, 4, 5, 6, 7, and 8, filed on September 26,
2006, February 9, 2007, July 2, 2007, September 17, 2007, October 19, 2007,
November 2, 2007, November 7, 2007 and November 13, 2007, respectively, pursuant
to the Securities Act (as amended, the "S-1 Registration Statement");
(b) the description of the Common Stock incorporated by reference into the
Company's Registration Statement on Form 8-A, File No. 001-33815, filed on
November 8, 2007 pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and contained in the S-1 Registration Statement; and
(c) the Company's Current Reports on Form 8-K filed on November 21, 2007
and December 7, 2007, respectively, pursuant to the Exchange Act.
In addition, all documents filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent
to the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all the securities offered hereby
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated herein by reference and to be a part hereof from
the date of the filing of such documents with the Commission. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. DESCRIPTION OF SECURITIES
Inapplicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's second amended and restated certificate of incorporation
limits its directors' and officers' liability to the fullest extent permitted
under the Delaware General Corporation Law (the "DGCL"). Specifically, the
Company's directors and officers will not be liable to the Company or its
stockholders for monetary damages for any breach of fiduciary duty by a director
or officer, except for liability:
o for any breach of the director's or officer's duty of loyalty to the
Company or its stockholders;
o for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
o under Section 174 of the DGCL; or
o for any transaction from which a director or officer derives an improper
personal benefit.
If the DGCL is amended to authorize corporate action further eliminating or
limiting the personal liability of directors or officers, then the liability of
the Company's directors and officers shall be eliminated or limited to the
fullest extent permitted by the DGCL, as so amended.
The provision regarding indemnification of the Company's directors and
officers in its second amended and restated certificate of incorporation will
generally not limit liability under state or federal securities laws.
Delaware law and the Company's second amended and restated certificate of
incorporation provide that the Company will, in certain situations, indemnify
any person made or threatened to be made a party to a proceeding by reason of
that person's former or present official capacity with the Company against
judgments, penalties, fines, settlements and reasonable expenses, including
reasonable attorneys' fees. Any person is also entitled, subject to certain
limitations, to payment or reimbursement of reasonable expenses in advance of
the final disposition of the proceeding. In addition, the employment agreements
to which the Company is a party provide for the indemnification of its employees
who are a party thereto.
In addition, the Company has entered into or plans to enter into
indemnification agreements with each of its directors, pursuant to which the
Company has agreed to indemnify the directors to the fullest extent permitted by
law. The directors are entitled to reimbursement for certain claims against them
if they acted in good faith and in a manner that such directors reasonably
believed was in, or not opposed to, the Company's best interests. The Company is
also required to advance certain expenses incurred by its directors in
connection with certain proceedings or claims against them arising from their
serving the Company or otherwise providing service at the Company's request. The
Company also maintains a directors' and officers' insurance policy pursuant to
which its directors and officers are insured against liability for actions taken
in their capacities as directors and officers.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
Item 8. EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher LLP with respect to the legality
of the securities to be issued pursuant to the Plan and the
Agreements.
23.1 Consent of PricewaterhouseCoopers LLP with respect to the financial
statements of the Company.
23.2 Consent of Schechter Dokken Kanter Andrews & Selcer Ltd. with respect
to the financial statements of the Company.
23.3 Consent of Willkie Farr & Gallagher LLP (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page hereto).
Item 9. UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to the 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; and
(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)(i) and (a)(ii) 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 Company pursuant to Section 13 or Section 15(d) of the Exchange Act, that
are incorporated by reference in the Registration Statement;
(b) 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; and
(c) 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.
2. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Company'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.
3. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Company pursuant to the foregoing provisions, or otherwise, the Company 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 Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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
Company 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.
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 the City of Minnetonka, State of Minnesota, on the 5th day of
December, 2007.
VIRTUAL RADIOLOGIC CORPORATION
By: /s/ Sean Casey
-----------------------------------
Name: Sean Casey, M.D.
Title: Chief Executive Officer and
Chairman of the Board
POWER OF ATTORNEY
Each of the undersigned officers and directors of Virtual Radiologic
Corporation hereby severally constitutes and appoints Sean Casey and Mark
Marlow, and each of them, with full power to act without the other, as his true
and lawful attorney-in-fact and agent for the undersigned, 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 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, 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 and about the premises, as fully to all intents and purposes as he
might or could do in person, thereby ratifying and confirming all that each said
attorney-in-fact and agent, or his substitute or substitutes, may lawfully 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/ Sean Casey
- ----------------------- Chairman of the Board and December 5, 2007
Sean Casey, M.D. Chief Executive Officer
(Principal Executive Officer)
/s/ Mark Marlow Chief Financial Officer December 5, 2007
- ----------------------- (Principal Financial and
Mark Marlow Accounting Officer)
/s/ Eduard Michel
- -------------------------- Director December 5, 2007
Eduard Michel, M.D.
/s/ Mark E. Jennings Director November 9, 2007
- -------------------------
Mark E. Jennings
/s/ Andrew P. Hertzmark
- -------------------------- Director November 9, 2007
Andrew P. Hertzmark
/s/ Nabil N. El-Hage Director December ___, 2007
- --------------------------
Nabil N. El-Hage
/s/ Richard J. Nigon Director December 5, 2007
- --------------------------
Richard J. Nigon
INDEX TO EXHIBITS
Exhibit No.
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5 Opinion of Willkie Farr & Gallagher LLP with respect to the legality
of the securities to be issued pursuant to the Plan and the
Agreements.
23.1 Consent of PricewaterhouseCoopers LLP with respect to the financial
statements of the Company.
23.2 Consent of Schechter Dokken Kanter Andrews & Selcer Ltd. with respect
to the financial statements of the Company.
23.3 Consent of Willkie Farr & Gallagher LLP (contained in Exhibit 5).
24 Power of Attorney (reference is made to the signature page hereto).