As filed with the Securities and Exchange Commission on October 11, 2002
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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PHOTOELECTRON CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
Massachusetts 04-3035323
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
9 Executive Park Drive
North Billerica, Massachusetts 01862
(Address of Principal Executive Offices, Including Zip Code)
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1996 EQUITY INCENTIVE PLAN, AS AMENDED
(Full Title of the Plan)
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Timothy W. Baker
President and Chief Financial Officer
PHOTOELECTRON CORPORATION
9 Executive Park Drive
North Billerica, Massachusetts 01862
(978) 670-8777
(Name, Address and Telephone Number, Including Area Code, of Agent For Service)
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Copy to:
Timothy B. Bancroft, Esq.
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110
(617) 482-1776
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CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Aggregate Offering Registration Fee
Share (1) Price (1)
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Common Stock, 300,000 $2.75 $825,000 $75.90
par value $.01 per
share
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(1) Estimated pursuant to Rule 457(h) and (c) solely for the purpose of
calculating the amount of the registration fee based on the average of the high
and low prices reported on the American Stock Exchange on October 8, 2002.
This registration statement on Form S-8 registers additional securities of the
registrant of the same class as other securities for which a registration
statement on Form S-8 relating to an employee benefit plan of the registrant is
effective. Pursuant to General Instruction E to Form S-8, only the information
required to register additional shares is provided in this registration
statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The information contained in Part II of the registration statement on Form
S-8, SEC File No. 333-32957, is incorporated by reference into this registration
statement.
The following documents are incorporated in this registration statement by
reference:
(a) The registrant's annual report on Form 10-K for the fiscal year ended
December 29, 2001 filed pursuant to the Securities Exchange Act of
1934 that contains audited financial statements for the fiscal year
ended December 29, 2001.
(b) the registrant's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 30, 2002 and June 29, 2002, filed pursuant to the
Securities Exchange Act of 1934;
(c) the registrant's current reports on Form 8-K dated February 6, 2002,
July 2, 2002, August 13, 2002 and October 2, 2002; and
(d) the description of the registrant's common stock in its registration
statement on Form 8-A filed pursuant to the Securities Exchange Act of
1934 on November 29, 1999.
In addition, all documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 herein and to be a part
hereof from the date of the filing of such documents.
The consolidated financial statements of the registrant as of and for the
year ended December 29, 2001 incorporated by reference in this registration
statement have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in its reports with respect thereto, and are included
herein in reliance upon the authority of said firm as experts in giving said
reports. Arthur Andersen LLP has not consented to the inclusion of its report in
this registration statement, and the registrant has dispensed with the
requirement to file Arthur Andersen LLP's consent in reliance upon Rule 437a
under the Securities Act of 1933. Because Arthur Andersen LLP has not consented
to the inclusion of its report, you may not be able to recover against Arthur
Andersen LLP for certain claims. For example you are unlikely to be able to
assert claims against Arthur Andersen LLP under Section 11 of the Securities Act
of 1933 if this registration statement contains financial statements audited by
Arthur Andersen LLP that include an untrue statement of a material fact or omit
to state a material fact necessary to make other statements in those financial
statements not misleading. In addition, (i) the ability of Arthur Andersen LLP
to satisfy any claims (including claims arising from Arthur Andersen LLP's
provision of auditing and other services to the registrant) may be limited as a
practical matter due to recent events regarding Arthur Andersen LLP and (ii)
notwithstanding that the registrant has not filed the written consent of Arthur
Andersen LLP relating to the financial statements, the registrant's directors
and officers may still be entitled to establish a due diligence defense to any
claim relating to the financial statements on the basis that they were made on
the authority of an expert.
Item 8. Exhibits
Exhibit
Number Description
4.1 Photoelectron Corporation 1996 Equity Incentive Plan (as amended May 27,
1998, May 17, 2000 and June 14, 2002)
5.1 Opinion of Goulston & Storrs, P.C.
23.1 Consent of Goulston & Storrs, P.C. (included in opinion filed as Exhibit
5.1)
24.1 Power of Attorney (included on signature page)
2
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 North Billerica, Massachusetts on this 11th day of October,
2002.
PHOTOELECTRON CORPORATION
By: /s/ Timothy W. Baker
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Timothy W. Baker
President and Chief Financial
Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Peter M. Nomikos and Timothy W. Baker,
and each of them, his or her true and lawful attorneys-in-fact and agents, each
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any or all amendments
(including 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, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
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 date indicated.
Signature Title Date
------------------------- --------------------------------- -----------------
/s/ Peter M. Nomikos Chief Executive Officer and October 11, 2002
-------------------- Chairman of the Board of
Peter M. Nomikos Directors (Principal Executive
Officer)
/s/ Timothy W. Baker President and Chief Financial October 11, 2002
-------------------- Officer (Principal Financial
Timothy W. Baker Officer and Principal
Accounting Officer)
/s/ Roger D. Wellington Director October 11, 2002
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Roger D. Wellington
/s/ Dr. Leonard Laster Director October 11, 2002
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Dr. Leonard Laster
/s/ Thomas J. Miller Director October 11, 2002
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Thomas J. Miller
3
EXHIBIT INDEX
Exhibit
Number Description
4.1 Photoelectron Corporation 1996 Equity Incentive Plan (as amended
May 27, 1998, May 17, 2000 and June 14, 2002)
5.1 Opinion of Goulston & Storrs, P.C.
23.1 Consent of Goulston & Storrs, P.C. (included in opinion
filed as Exhibit 5.1)
24.1 Power of Attorney (included on signature page)