*TOTAL NUMBER OF PAGES: AS FILED WITH THE SECURITIES AND EXCHANGE
INDEX TO EXHIBITS AT PAGE: COMMISSION ON MAY 27, 1998
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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CARDIOTHORACIC SYSTEMS, INC.
(Exact name of Registrant as specified in its charter)
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Delaware 94-3228757
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(State of incorporation) (I.R.S. Employer
Identification No.)
10600 North Tantau Avenue
Cupertino, California 95014
(Address, including zip code, of Registrant's principal executive offices)
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1998 NONSTATUTORY STOCK OPTION PLAN
INCENTIVE STOCK PLAN
(Full titles of the plans)
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CardioThoracic Systems, Inc.
10600 North Tantau Avenue
Cupertino, California 95014
(408) 342-1700
(Name, address, and telephone number, including area code, of agent for service)
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Copies to:
Christopher J. Ozburn, Esq.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(415) 493-9300
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered (1) Registered Per Share Offering Price Fee
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Common Stock, $0.001 par value (1) 150,000 shares (2)) $4.9375(3) $740,625 $218.4844
Common Stock, $0.001 par value (1) 600,000 shares (4) $4.9375(3) $2,962,500 $873.9375
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TOTAL $ 1,093.00
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933 (the
"Act"), this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
(2) This number represents the number of shares being registered pursuant to
this Registration Statement which are issuable upon exercise of options
which have not yet been granted under the 1998 Nonstatutory Stock Option
Plan as of the date of this Registration Statement.
(3) Calculated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. Calculation based on the
weighted average exercise price (rounded to the nearest cent) at which the
options outstanding whose exercise will result in the issuance of the
shares being registered may be exercised.
(4) This number represents the shares of Common Stock which have become
available for issuance under the Registrant's Incentive Stock Plan as a
result of an amendment approved by the stock holders at the Registrant's
Annual Meeting held on May 19, 1998 increasing the number of shares for
issuance thereunder from 2,200,000 to 2,800,000.
2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INFORMATION INCORPORATED BY REFERENCE
The following documents and information previously filed with the
Securities and Exchange Commission are hereby incorporated by reference:
(a) The Registrant's Quarterly Report on Form 10-Q for the quarter ended April
3, 1998, filed pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on May 13, 1998
(b) The Registrant's Annual Report on Form 10-K for the year ended January 2,
1998, filed pursuant to the Exchange Act, on March 31, 1998.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain members of Wilson Sonsini Goodrich and Rosati, Professional
Corporation, and investment partnerships of which such persons are partners
beneficially own 1,389 shares of the Registrant's Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware provides for the
indemnification of officers, directors and other corporate agents in terms
sufficiently broad to indemnify such persons, under certain circumstances, for
certain liabilities (including reimbursement of expenses incurred) arising under
the Securities Act of 1933 (the "Securities Act").
The Registrant's Bylaws provide that the Registrant shall indemnify its
directors and executive officers and may indemnify its other officers and
employees and other agents to the fullest extent permitted by law, including
circumstances in which indemnification is otherwise discretionary under Delaware
law.
The Registrant has adopted provisions in its Certificate of Incorporation
that limits the personal liability of its directors and officers for monetary
damages arising from a breach of their fiduciary duties in certain circumstances
to the fullest extent permitted by law. Such limitation of liability does not
affect the availability of equitable remedies such as injunctive relief or
rescission.
The Registrant entered into indemnification agreements with its executive
officers and directors containing provisions which are in some respects broader
that the specific indemnification provisions contained in the General
Corporation Law of Delaware. The indemnification agreements may require the
Company, among other things, to indemnify such officers and directors against
certain liabilities that may arise by reason of their status or service as
directors or officers (other than liabilities arising from willful misconduct of
a culpable nature). These agreements also indemnify the directors and executive
officers for certain expenses (including attorney's fees), judgments, fines and
settlement amounts incurred as a result of any proceeding against them as to
which they could be indemnified.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
II-1
Item 8. EXHIBITS.
Exhibit
Number Document
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10.2 1998 Nonstatutory Stock Option Plan and form of Nonstatutory
Stock Option Agreement thereunder.
10.3 Incentive Stock Plan, as amended
23.1 Consent of Coopers & Lybrand L.L.P., Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto).
24.1 Power of Attorney (see page II-4).
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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,
post-effective amendment to this Registration Statement 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.
(2) 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.
(3) 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.
(b) The undersigned Registrant hereby undertakes that, for purposes 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, where applicable, 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
the Registration Statement shall be deemed to be a new registration
statement relating to the securities therein, and the offering of such
securities at that time shall be deemed to be an 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 Securities 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
II-2
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.
II-3
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 Cupertino, State of California, on
this 27th day of May, 1998
CardioThoracic Systems, Inc.
By: /s/ RICHARD M. FERRARI
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Richard M. Ferrari
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Richard M. Ferrari and Steve M. Van
Dick, jointly and severally, as his attorney-in-fact, each with the power of
substitution, for him in any and all capacities, to sign any amendments to
this Registration Statement on Form S-8, and to file the same, with exhibits
thereto and other documents in connection therewith, with the Securities and
Exchange Commission, hereby ratifying and confirming all that the said
attorneys-in-fact, or his substitute or substitutes, may 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
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/s/ RICHARD M. FERRARI President, Chief Executive Officer and May 27, 1998
----------------------------- Director* (Principal Executive Officer)*
Richard M. Ferrari
/s/ STEVE M. VAN DICK Vice President of Finance and May 27, 1998
----------------------------- Administration and Chief Financial
Steve M. Van Dick Officer (Principal Financial and
Accounting Officer)
/s/ CHARLES S. TAYLOR Vice President, Chief Technical Officer May 27, 1998
----------------------------- and Director*
Charles S. Taylor
/s/ ROBERT C. BELLAS, JR. Director* May 27, 1998
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Robert C. Bellas, Jr.
/s/ THOMAS J. FOGARTY, M.D. Director* May 27, 1998
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Thomas J. Fogarty, M.D.
/s/ JACK W. LASERSOHN Director* May 27, 1998
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Jack W. Lasersohn
/s/ THOMAS C. MCCONNELL Director* May 27, 1998
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Thomas C. McConnell
/s/ PHILIP M. YOUNG Director* May 27, 1998
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Philip M. Young
* The Incentive Stock Plan, as amended and the 1998 Nonstatutory Stock
Option Plan are being registered pursuant to this Registration Statement and
are subject to administration by the Board of Directors of the Registrant.
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INDEX TO EXHIBITS
Exhibit Description
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10.2 1998 Nonstatutory Stock Option Plan and form
of Nonstatutory Stock Option Agreement
thereunder
10.3 Incentive Stock Plan, as amended
23.1 Consent of Coopers & Lybrand L.L.P.,
Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati,
Professional Corporation (contained in
Exhibit 5.1 hereto)
24.1 Power of Attorney (see Page II-4)
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