As filed with the Securities and Exchange Commission on March 28, 2001
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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ENCAD, INC.
(Exact name of issuer as specified in its charter)
DELAWARE 95-3672088
(State or other jurisdiction (IRS Employer Identification No.)
of incorporation or organization)
6059 CORNERSTONE COURT WEST, SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip Code)
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ENCAD, INC.
1993 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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TERRY VANDEWARKER
Chief Executive Officer
ENCAD, INC.
6059 CORNERSTONE COURT WEST, SAN DIEGO, CALIFORNIA 92121
(Name and address of agent for service)
(858) 452-0882
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered(1) Per Share(2) Price (2) Fee
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1993 Employee Stock Purchase Plan
Common Stock, $0.001 par value 200,000 shares $1.91 $382,000 $95.50
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1993 Employee Stock
Purchase Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
receipt of consideration which results in an increase in the number of
outstanding shares of Common Stock of ENCAD, Inc.
(2) Calculated solely for purposes of this offering under Rule 457(h) of
the Securities Act of 1933, as amended, on the basis of the average of
the high and low selling prices per share of Common Stock of ENCAD,
Inc. on March 22, 2001 as reported by the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
ENCAD, Inc. (the "Registrant") hereby incorporates by reference into this
Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "SEC"):
(a) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, filed with the SEC on March 30, 2000, as
amended;
(b) The Registrant's Quarterly Reports on Forms 10-Q and 10-Q/A for the
fiscal quarters ended March 31, 2000, June 30, 2000 and September
30, 2000, filed with the SEC; and
(c) The Registrant's Registration Statement No. 001-12652 on Form 8-A
filed with the SEC on December 6, 1993 in which the terms, rights
and provisions applicable to the Registrant's Common Stock are
described and the Registrant's Registration Statement No. 000-23034
on Form 8-A filed with the SEC on March 20, 1998, as amended, in
which the terms, rights and provisions applicable to the
Registrant's Preferred Stock Purchase Rights are described.
All reports and definitive proxy or information statements filed pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the
"1934 Act") after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all securities offered
hereby 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
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 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
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Bylaws (the "Bylaws") provide that the Registrant shall,
to the fullest extent authorized by Delaware law, indemnify any director who is
made, or is threatened to be made, a party to an action or proceeding, whether
civil or criminal, administrative or investigative, by reason of being a
director of the Registrant or a predecessor corporation of the Registrant, or is
or was serving at the request of the Registrant as a director or officer of
another corporation; provided, however, that the Registrant shall indemnify any
such agent in connection with a proceeding
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initiated by such agent only if such proceeding was authorized by the
Registrant's Board of Directors (the "Board"). The Bylaws further provide that
such indemnification provisions shall: (i) not be deemed to be exclusive of any
other rights to which those indemnified may be entitled under any bylaw,
agreement or vote of stockholder or disinterested directors or otherwise, both
as to action in their official capacities and as to action in another capacity
while holding such office, (ii) continue as to a person who has ceased to be a
director, and (iii) inure to the benefit of the heirs, executors and
administrators of such a person. The Bylaws provide that the Registrant's
obligation to provide indemnification shall be offset to the extent of any other
source of indemnification or any otherwise applicable insurance coverage under a
policy maintained by the Registrant or any other person. The Bylaws further
provide that the Board in its discretion shall have the power to indemnify any
person, other than a director, made a party to any action, suit or proceeding by
reason of the fact that he, his testator or intestate, is or was an officer or
employee of the corporation.
In addition, the Registrant's Certificate of Incorporation (the
"Certificate of Incorporation") provides that, pursuant to Delaware law, its
directors shall not be personally liable for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions not in good faith or involving intentional misconduct, (iii) for
knowing violations of law, (iv) for actions leading to improper personal benefit
to the director, and (v) for unlawful payments of dividends or unlawful stock
repurchases or redemptions as provided in Section 174 of Delaware General
Corporation Law.
The Registrant maintains a directors' and officers' liability insurance
policy that, subject to certain limitations, terms and conditions, will insure
the directors and officers of the Registrant against losses arising from
wrongful acts (as defined by the policy) in his or her capacity as a director or
officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
EXHIBIT NO. EXHIBIT
4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration
Statement No. 001-12652 on Form 8-A, and Registrant's Registration Statement No. 000-23034 on
Form 8-A, as amended, which are incorporated herein by reference pursuant to Item 3(c) of this
Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Public Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 ENCAD, Inc. 1993 Employee Stock Purchase Plan, as amended.
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 of 1933, as amended (the "1933 Act"),
(ii) to reflect in the prospectus any facts or events arising after the
effective date of this 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 this 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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
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aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement, and (iii) to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement; provided, however, that clauses (1)(i) and (1)(ii) shall
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the 1933 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
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold upon the termination of the
Registrant's 1993 Employee Stock Purchase Plan, as amended.
B. The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the 1933 Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15 (d) of the
1934 Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference into this 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
1933 Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the indemnity provisions summarized in Item 6 or
otherwise, the Registrant has been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the 1933 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 1933 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 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 San Diego, State of California, on this 28th day of
March, 2001.
ENCAD, INC.
By /s/ Terry Vandewarker
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Terry Vandewarker
(President and Chief Executive Officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That the undersigned officers and directors of ENCAD, INC., a Delaware
corporation, do hereby constitute and appoint Terry Vandewarker and Thomas L.
Green, or each of them, the lawful attorneys-in-fact and agents, with full power
and authority to do any and all acts and things and to execute any and all
instruments which said attorneys and agents, or either one of them, determine
may be necessary or advisable or required to enable said corporation to comply
with the Securities Act of 1933, as amended, and any rules or regulations or
requirements of the Securities and Exchange Commission in connection with this
Registration Statement. Without limiting the generality of the foregoing power
and authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms all that said
attorneys and agents, or any of them, shall do or cause to be done by virtue
hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ David A. Purcell Chairman of the Board, Director March 28, 2001
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(David A. Purcell)
/s/ Terry Vandewarker President and Chief Executive Officer March 28, 2001
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(Terry Vandewarker)
/s/ Todd Schmidt Vice President and Chief Financial Officer March 28, 2001
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(Todd Schmidt)
/s/ Ronald J. Hall Director March 28, 2001
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(Ronald J. Hall)
/s/ Howard L. Jenkins Director March 28, 2001
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(Howard L. Jenkins)
/s/ Craig S. Andrews Director March 28, 2001
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(Craig S. Andrews)
/s/ Charles E. Volpe Director March 28, 2001
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(Charles E. Volpe)
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ENCAD, INC.
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's Registration
Statement No. 001-12652 on Form 8-A, and Registrant's Registration Statement No. 000-23034 on
Form 8-A, as amended, which are incorporated herein by reference pursuant to Item 3(c) of this
Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Public Accountants.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 ENCAD, Inc. 1993 Employee Stock Purchase Plan, as amended.