As filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-
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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ENCAD, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 95-3672088
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(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
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6059 CORNERSTONE COURT WEST
SAN DIEGO, CALIFORNIA 92121
(Address of principal executive offices) (Zip Code)
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1999 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the Plan)
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DAVID A. PURCELL
CHAIRMAN OF THE BOARD, PRESIDENT AND CHIEF EXECUTIVE OFFICER
ENCAD, INC.
6059 CORNERSTONE COURT WEST,
SAN DIEGO, CALIFORNIA 92121
(Name and address of agent for service)
(858) 452-0882
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES TO BE AMOUNT TO BE PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AGGREGATE AMOUNT OF
REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (2) REGISTRATION FEE
- ------------------------------- ---------------- --------------------------- ---------------------------- -------------------
Common Stock, $0.0001 par value 580,000 shares $7.1563 $4,150,654.00 $1,153.88
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(1) This Registration Statement shall also cover any additional shares of
Registrant's Common Stock which become issuable under the 1999 Stock
Option/Stock Issuance Plan by reason of any stock dividend, stock split,
recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the
number of the outstanding shares of the Registrant's Common Stock.
(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 the Registrant's Common Stock on August
10, 1999 as reported on the Nasdaq National Market.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN 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 "Commission"):
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998 filed with the
Commission on March 30, 1999, pursuant to Section 13
of the Securities Exchange Act of 1934, as amended
(the "1934 Act");
(b) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1999 filed with
the Commission on May 14, 1999; and
(c) The Registrant's Registration Statements on Form 8-A
filed with the Commission on December 6, 1993, in
which there is described the terms, rights and
provisions applicable to the Registrant's
outstanding Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of 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 is also 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 serving
as 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
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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 for (i) any breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) any acts
or omissions not in good faith or involving intentional misconduct, (iii) any
knowing violations of law, (iv) any actions leading to improper personal benefit
to the director, and (v) any 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 their capacity as a director or
officer.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
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4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's
Registration Statements on Form 8-A, including the exhibits thereto, incorporated herein
by reference pursuant to Item 3(c) of this Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.1.
24.1 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Encad, Inc. 1999 Stock Option/Stock Issuance Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement - Involuntary Termination Following Corporate
Transaction/Change in Control
99.5 Form of Addendum to Stock Option Agreement - Limited Stock Appreciation Right
99.6 Form of Stock Issuance Agreement
99.7 Form of Addendum to Stock Issuance Agreement - Involuntary Termination Following
Corporate Transaction/Change in Control.
99.8 Form of Notice of Grant of Non-Employee Director - Initial
99.9 Form of Notice of Grant of Non-Employee Director - Annual
99.10 Form of Automatic Stock Option Agreement
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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 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 at the termination of the 1999 Stock Option /Stock Issuance 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 in 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
Commission 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.
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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 this 13th day of August, 1999.
ENCAD, INC.
By: /s/ David A. Purcell
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David A. Purcell
Chairman of the Board, President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Encad, Inc., a
Delaware corporation, do hereby constitute and appoint David A. Purcell and
Todd W. Schmidt 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 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 regulations 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
thereof, and each of the undersigned hereby ratifies and confirms all that
said attorneys and agents 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 of the Board, President and Chief August 13, 1999
David A. Purcell Executive Officer (Principal Executive Officer)
/s/ Todd W. Schmidt Vice President, Chief Financial Officer August 13, 1999
- -------------------------- (Principal Financial Officer and Accounting
Todd W. Schmidt Officer)
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/s/ Robert V. Adams
- -------------------------- Director August 13, 1999
Robert V. Adams
/s/ Craig S. Andrews
- -------------------------- Director August 13, 1999
Craig S. Andrews
/s/ Ronald J. Hall
- -------------------------- Director August 13, 1999
Ronald J. Hall
/s/ Howard L. Jenkins
- -------------------------- Director August 13, 1999
Howard L. Jenkins
/s/ Charles E. Volpe
- -------------------------- Director August 13, 1999
Charles E. Volpe
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
ENCAD, INC.
EXHIBIT INDEX
EXHIBIT NUMBER EXHIBIT
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4 Instruments Defining Rights of Stockholders. Reference is made to Registrant's
Registration Statements on Form 8-A, including the exhibits thereto, incorporated herein
by reference pursuant to Item 3(c) of this Registration Statement.
5 Opinion of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Deloitte & Touche LLP, Independent Auditors.
23.2 Consent of Brobeck, Phleger & Harrison LLP is contained in Exhibit 5.
24.1 Power of Attorney. Reference is made to page II-4 of this Registration Statement.
99.1 Encad, Inc. 1999 Stock Option/Stock Issuance Plan.
99.2 Form of Notice of Grant of Stock Option.
99.3 Form of Stock Option Agreement.
99.4 Form of Addendum to Stock Option Agreement - Involuntary Termination Following Corporate
Transaction/Change in Control
99.5 Form of Addendum to Stock Option Agreement - Limited Stock Appreciation Right
99.6 Form of Stock Issuance Agreement
99.7 Form of Addendum to Stock Issuance Agreement - Involuntary Termination Following
Corporate Transaction/Change in Control.
99.8 Form of Notice of Grant of Non-Employee Director - Initial
99.9 Form of Notice of Grant of Non-Employee Director - Annual
99.10 Form of Automatic Stock Option Agreement