As filed with the Securities and Exchange Commission on February 12, 1999
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CLOSURE MEDICAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 56-1959623
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5250 Greens Dairy Road
Raleigh, North Carolina 27616
(Address of principal executive offices) (Zip Code)
CLOSURE MEDICAL CORPORATION
1999 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
ROBERT V. TONI
President and Chief Executive Officer
Closure Medical Corporation
5250 Greens Dairy Road
Raleigh, NC 27616
(Name and address of agent for service)
(919) 876-7800
(Telephone number, including area code, of agent for service)
Copy of all communications to:
DEBRA J. POUL
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103
(215) 963-5000
CALCULATION OF REGISTRATION FEE
===========================================================================================
Proposed maximum
Title of Proposed maximum aggregate
securities Amount to be offering price offering price Amount of
to be registered registered per share (1) (1) registration fee
===========================================================================================
Common Stock,
$.01 par value 1,500,000 (2) $37.375 $56,062,500.00 $16,539.00
===========================================================================================
(1) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee, based upon the average of the high and low sale prices of
shares of Common Stock on February 10, 1999, as reported on the Nasdaq
National Market.
(2) Pursuant to Rule 416 under the Securities Act of 1933, this Registration
Statement also covers such additional shares as may hereinafter be offered
or issued to prevent dilution resulting from stock splits, stock dividends,
recapitalizations or certain other capital adjustments.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, as filed by Closure Medical Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission"),
are incorporated by reference in this Registration Statement:
(a) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1997.
(b) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998.
(c) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998.
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998.
(e) The description of the Common Stock of the Registrant set forth
in the Registrant's Registration Statement on Form 8-A filed by the
Registrant on August 15, 1996 to register such securities under the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
All documents filed by the Registrant 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 that indicates that all securities offered hereby 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 part hereof
from the date of filing of such documents.
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
that is also 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 hereof.
The financial statements contained in the Registrant's Annual Report on
Form 10-K for the year ended December 31, 1997 incorporated by reference in this
Registration Statement have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent public accountants, given on the
authority of said firm as experts in auditing and accounting.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
A. Section 145 of the Delaware General Corporation Law ("Section
145") permits indemnification of directors, officers, agents and controlling
persons of a corporation under certain conditions and subject to certain
limitations. Section 145 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, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that such person is or was a director,
officer or agent of the corporation or another enterprise if serving at the
request of the corporation. Depending on the character of the proceeding, a
corporation may indemnify against
II-1
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such action, suit
or proceeding if the person indemnified 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 such person's conduct was unlawful. In the case of
an action by or in the right of the corporation, no indemnification may be made
with respect to any claim, issue or matter as to which such person shall have
been 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
shall determine that despite the adjudication of liability such person is fairly
and reasonably entitled to indemnity for such expenses which the court shall
deem proper. Section 145 further provides that to the extent a director or
officer of a corporation has been successful in the defense of any action, suit
or proceeding referred to above or in defense of any claim, issue or matter
therein, such person shall be indemnified against expenses (including attorneys'
fees) actually or reasonably incurred by such person in connection therewith.
B. As permitted by the Delaware General Corporation Law, the Registrant
has included a provision in its Restated Certificate of Incorporation, as
amended, that, subject to certain limitations, eliminates the ability of the
Registrant and its stockholders to recover monetary damages from a director of
the Registrant for breach of fiduciary duty as a director. Article VI of the
Registrant's By-Laws provides for indemnification of the Registrant's directors
and officers and advancement of expenses to the extent otherwise permitted by
Section 145. In addition, the Registrant has agreed to indemnify certain
executive officers of the Registrant pursuant to the terms of their employment
agreements to the maximum extent permitted by applicable law against all costs,
charges and expenses incurred by each in connection with any action, suit or
proceeding to which he may be a party or in which he may be a witness by reason
of his being an officer, director or employee of the Registrant or any
subsidiary or affiliate of the Registrant.
C. As authorized by Section 145 of the Delaware General Corporation Law
and Article VI of the Registrant's By-Laws, the Registrant maintains, on behalf
of its directors and officers, insurance protection against certain liabilities
arising out of the discharge of their duties, as well as insurance covering the
Registrant for indemnification payments made to its directors and officers for
certain liabilities. The premiums for such insurance are paid by the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement.
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Morgan, Lewis & Bockius LLP
10.1 Closure Medical Corporation 1999 Employee Stock Purchase Plan
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included in its
opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)
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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;
(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)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Securities and Exchange Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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 that remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this Registration Statement shall be deemed
to be a new registration statement relating to the securities offered herein 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 of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES AND POWER OF ATTORNEY
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 Raleigh, North Carolina, on February 12, 1999.
CLOSURE MEDICAL CORPORATION
By: /s/Robert V. Toni
-----------------
Robert V. Toni
President and Chief Executive Office
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 date indicated.
EACH PERSON IN SO SIGNING ALSO MAKES, CONSTITUTES AND APPOINTS ROBERT V.
TONI AND J. BLOUNT SWAIN, AND EACH OF THEM ACTING ALONE, HIS TRUE AND LAWFUL
ATTORNEY-IN-FACT, WITH FULL POWER OF SUBSTITUTION, TO EXECUTE AND CAUSE TO BE
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE REQUIREMENTS
OF THE SECURITIES ACT OF 1933, AS AMENDED, ANY AND ALL AMENDMENTS AND
POST-EFFECTIVE AMENDMENTS TO THIS REGISTRATION STATEMENT, WITH EXHIBITS THERETO
AND OTHER DOCUMENTS IN CONNECTION THEREWITH, AND HEREBY RATIFIES AND CONFIRMS
ALL THAT SAID ATTORNEY-IN-FACT OR HIS SUBSTITUTE OR SUBSTITUTES MAY DO OR CAUSE
TO BE DONE BY VIRTUE HEREOF.
Name Capacity Date
---- -------- ----
/s/Robert V. Toni President and Chief Executive
- ------------------ Officer (principal executive February 12, 1999
Robert V. Toni officer) and Director
/s/J. Blount Swain Vice President and Chief
- ------------------- Financial Officer (principal
J. Blount Swain financial and accounting February 12, 1999
officer)
/s/Rolf D. Schmidt Chairman of the Board and February 12, 1999
- ------------------- Director
Rolf D. Schmidt
/s/Ronald A. Ahrens Director February 12, 1999
- -------------------
Ronald A. Ahrens
/s/Dennis C. Carey Director February 12, 1999
- -------------------
Dennis C. Carey
/s/ Richard W. Miller Director February 12, 1999
- --------------------
Richard W. Miller
/s/F. William Schmidt Director February 12, 1999
- ---------------------
F. William Schmidt
Name Capacity Date
---- -------- ----
/s/Randy H. Thurman Director February 12, 1999
- ---------------------
Randy H. Thurman
CLOSURE MEDICAL CORPORATION
REGISTRATION STATEMENT ON FORM S-8
EXHIBIT INDEX
-------------
Exhibit
Number Exhibit
- ------ -------
5.1 Opinion of Morgan, Lewis & Bockius LLP
10.1 Closure Medical Corporation 1999 Employee Stock Purchase Plan
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Morgan, Lewis & Bockius LLP (included in its
opinion filed as Exhibit 5.1 hereto)
24.1 Power of Attorney (included on signature page of this
Registration Statement)