AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 24, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ENCAD, INC.
(Exact name of Registrant as specified in its charter)
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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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1998 STOCK OPTION PLAN
1997 SUPPLEMENTAL STOCK OPTION PLAN, AS AMENDED
NON-STATUTORY STOCK OPTION AGREEMENT
(Full title of the Plan)
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DAVID A. PURCELL
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
ENCAD, INC.
6059 CORNERSTONE COURT WEST, SAN DIEGO, CALIFORNIA 92121
(619) 452-0882
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE PRICE FEE
1998 STOCK OPTION PLAN
Common Stock,
$0.001 par value 575,000 shares $14.25(2) $8,193,750.00(2) $2,458.12
1997 SUPPLEMENTAL
STOCK OPTION PLAN,
AS AMENDED
Common Stock,
$0.001 par value 115,000 shares $14.25(2) $1,638,750.00(2) $ 491.62
NON-STATUTORY STOCK
OPTION AGREEMENT
Common Stock,
$0.001 par value 75,000 shares $14.25(2) $1,068,750.00(2) $ 320.63
Aggregate Filing Fee $3,270.37
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under the 1998 Stock Option Plan, the 1997
Supplemental Stock Option Plan, as amended, or the Non-Statutory Stock Option
Agreement by reason of any stock dividend, stock split, recapitalization or
any other similar transaction without 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 July 20,
1998 as reported on 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, 1997, filed with the SEC on March 31, 1998;
(b) The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1998, filed with the SEC on May 15, 1998; 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.
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
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 (iv) 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,
which is incorporated herein by reference pursuant to Item 3(d)
of this Registration Statement.
5 Opinion and Consent 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-5 of this
Registration Statement.
99.1 1998 Stock Option Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 1997 Supplemental Stock Option Plan, as amended.
99.5 Form of Non-Statutory Stock Option Agreement.
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, 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 1998 Stock Option Plan or the Registrant's 1997 Supplemental
Stock Option Plan.
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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 July 22, 1998.
ENCAD, INC.
By: /s/ DAVID A PURCELL
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David A. Purcell
Chairman 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 David A. Purcell and
Richard A. Plante and 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 regulation 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 thereto, and each of the undersigned
hereby ratifies and confirms all that said attorneys and agents, or either
one 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, as
amended, this Registration Statement has been signed below by the following
persons in the capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/DAVID A PURCELL Chairman and
- --------------------------- Chief Executive Officer July 22, 1998
David A. Purcell (Principal Executive Officer)
/s/RICHARD A PLANTE President and July 22, 1998
- --------------------------- Chief Operating Officer
Richard A. Plante
SIGNATURES TITLE DATE
/s/TODD W. SCHMIDT Vice President and July 22, 1998
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Todd W. Schmidt (Principal Financial and
Accounting Officer)
/s/ROBERT V. ADAMS Director July 22, 1998
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Robert V. Adams
/s/CRAIG S. ANDREWS Director July 22, 1998
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Craig S. Andrews
/s/RONALD J. HALL Director July 22, 1998
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Ronald J. Hall
/s/HOWARD L. JENKINS Director July 22, 1998
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Howard L. Jenkins
/s/CHARLES E. VOLPE Director July 22, 1998
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Charles E. Volpe
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 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. 00-112652 on Form 8-A, which
is incorporated herein by reference pursuant to Item 3(d) of this
Registration Statement.
5 Opinion and Consent 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-5 of this Registration
Statement.
99.1 1998 Stock Option Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 1997 Supplemental Stock Option Plan, as amended.
99.5 Form of Non-Statutory Stock Option Agreement.