*TOTAL NUMBER OF PAGES: AS FILED WITH THE SECURITIES AND EXCHANGE
INDEX TO EXHIBITS AT PAGE: COMMISSION ON JANUARY 22, 1999
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 EMPLOYEE STOCK PURCHASE 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) . . . . 250,000 shares (2) $6.6875(3) $1,671,875 $464.7813
TOTAL $465.00
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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 Employee Stock
Purchase 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 subtotal represents the number of shares authorized to be issued
under the 1998 Employee Stock Purchase Plan.
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PART I
INFORMATION REQUIRED IN THE PROSPECTUS
Item 1. PLAN INFORMATION
The Registrant will provide the documents containing the information
specified in this Item 1 as specified by Rule 428(b)(1). In accordance with the
rules and regulations of the Securities and Exchange Commission (the
"Commission") and the instructions to Form S-8, the Registrant is not filing
such documents with the Commission either as part of this Registration Statement
or as prospectuses or prospectus supplements pursuant to Rule 424.
Item 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The Registrant will provide the documents containing the information
specified in this Item 2 as specified by Rule 428(b)(1). In accordance with the
rules and regulations of the Commission and the instructions to Form S-8, the
Registrant is not filing such documents with the Commission either as part of
this Registration Statement or as prospectuses or prospectus supplements
pursuant to Rule 424.
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 Annual Report on Form 10-K (the "Annual Report") for
the fiscal year ended January 2, 1998 filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(b) The Registrant's definitive Proxy Statement dated September 28, 1998
filed in connection with the Registrant's 1998 Annual Meeting of
Stockholders;
(c) The Registrant's definitive Proxy Statement dated April 9, 1998 filed
in connection with the Registrant's 1998 Annual Meeting of
Stockholders;
(d) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
October 2, 1998, filed pursuant to Section 13 or 15(d) of the Exchange
Act;
(e) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
July 3, 1998, filed pursuant to Section 13 or 15(d) of the Exchange
Act;
(f) 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 Exchange
Act;
(g) The description of the Company's Preferred Share purchase rights
contained in the Company's Registration Statement on Form 8-A12G filed
on February 28, 1997 (File No. 000-27880).
(h) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed on March 1, 1996.
All documents subsequently filed with the Commission by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this Registration Statement, shall
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be deemed to be incorporated by reference in this Registration Statement and
to be part hereof from the date of filing of such documents.
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.
Item 8. EXHIBITS.
Exhibit
Number Document
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5.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.2 1998 Employee Stock Purchase Plan and form of 1998 Employee Stock
Purchase Plan Subscription Agreement thereunder.
23.1 Consent of PricewaterhouseCoopers L.L.P., Independent Accountants.
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1 hereto).
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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 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
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 22nd day of
January, 1999
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 January 22, 1999
- ----------------------------- Officer and Director*
Richard M. Ferrari (Principal Executive
Officer)*
/s/ STEVE M. VAN DICK Vice President of Finance January 22, 1999
- ----------------------------- and Administration and
Steve M. Van Dick Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ CHARLES S. TAYLOR Vice President, Chief January 22, 1999
- ----------------------------- Technical Officer and
Charles S. Taylor Director*
/s/ ROBERT C. BELLAS, JR. Director* January 22, 1999
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Robert C. Bellas, Jr.
/s/ THOMAS J. FOGARTY, M.D. Director* January 22, 1999
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Thomas J. Fogarty, M.D.
/s/ JACK W. LASERSOHN Director* January 22, 1999
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Jack W. Lasersohn
/s/ THOMAS C. MCCONNELL Director* January 22, 1999
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Thomas C. McConnell
/s/ PHILIP M. YOUNG Director* January 22, 1999
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Philip M. Young
* The 1998 Employee Stock Purchase Plan is being registered pursuant to this
Registration Statement and is subject to administration by the Board of
Directors of the Registrant.
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INDEX TO EXHIBITS
Exhibit Description
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5.1 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation
10.2 1998 Employee Stock Purchase Plan
23.1 Consent of PricewaterhouseCoopers 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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