AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 1, 2002
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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IRIDEX CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 77-0210467
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1212 TERRA BELLA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(650) 940-4700
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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1998 STOCK PLAN
1995 EMPLOYEE STOCK PURCHASE PLAN
(FULL TITLE OF THE PLANS)
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THEODORE A. BOUTACOFF
PRESIDENT AND CHIEF EXECUTIVE OFFICER
1212 TERRA BELLA AVENUE
MOUNTAIN VIEW, CALIFORNIA 94043
(NAME AND ADDRESS OF AGENT FOR SERVICE)
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(650) 940-4700
(TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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Copies to:
DAVID J. SEGRE, ESQ.
WILSON SONSINI GOODRICH & ROSATI
PROFESSIONAL CORPORATION
650 PAGE MILL ROAD
PALO ALTO, CA 94304-1050
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
BE REGISTERED REGISTERED(1) PER SHARE PRICE (4)
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Common Stock to be issued upon
exercise of options granted
under the 1998 Stock Plan....... 300,000 $2.61 $782,250.00(2) $71.97
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Common Stock to be issued
pursuant to the 1995 Employee
Stock Purchase Plan............. 30,000 $2.22 $ 66,492.00(3) $ 6.12
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TOTAL 330,000 $848,742.00 $78.08
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(1) Amount of securities to be registered computed in accordance with Rule
457(h) promulgated under the Securities Act of 1933 (the "Securities Act"),
as the maximum number of the Registrant's Common Stock issuable under the
1998 Stock Plan and 1995 Employee Stock Purchase Plan, as applicable.
(2) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act solely for the purpose of calculating the amount of registration fee,
based on the average high and low price as reported in the Nasdaq National
Market on July 25, 2002.
(3) Estimated in accordance with Rule 457(h) promulgated under the Securities
Act solely for the purpose of calculating the amount of registration fee,
based on 85% of the average between the high and low prices as reported on
the Nasdaq National Market on July 25, 2002.
(4) Amount of registration fee was calculated pursuant to Section 6(b) of
Securities Act, which provides that the fee shall be $92 per $1,000,000 of
the proposed maximum aggregate offering price of the securities proposed to
be registered.
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IRIDEX CORPORATION
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference in this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission:
1. The Registrant's Annual Report on Form 10-K for the fiscal year ended
December 29, 2001, as amended by the Form 10-K/A filed on April 10, 2002
pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
2. The Registrant's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 30, 2002 filed pursuant to Section 13 of the Exchange Act; and
3. The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on February 15, 1996,
pursuant to Section 12(b) of the Securities Exchange Act of 1934 (the "Exchange
Act"), and any further amendment or report filed hereafter for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act on or after the date of this Registration
Statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145(a) of the Delaware General Corporation Law (the "DGCL")
provides in relevant part that "[a] corporation shall have power 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 (other than an action by or in the
right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person 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 the person's
conduct was unlawful." With respect to derivative actions, Section 145(b) of the
DGCL provides in relevant part that "[a] corporation shall have power 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 or suit by or in the right of the
corporation to procure a judgment in its favor...[by reason of the person's
service in one of the capacities specified in the preceding sentence] against
expenses (including attorneys' fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action or suit if
the person 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 except that no
indemnification shall be made in respect of 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 upon application that, despite
the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Court of Chancery or such other court shall deem proper."
The Registrant's Amended and Restated Certificate of Incorporation
provides that to the fullest extent permitted by the DGCL, no director of the
Registrant shall be personally liable to the Registrant or its stockholders for
monetary damages for breach of fiduciary duty as a director. The Restated
Certificate of Incorporation also provides that no amendment or repeal of such
provision shall apply to or have any effect on the right to indemnification
permitted thereunder with respect to claims arising from acts or omissions
occurring in whole or in part before the effective date of such amendment or
repeal whether asserted before or after such amendment or repeal.
The Registrant's bylaws provide for the indemnification of officers,
directors and third parties acting on behalf of the Registrant if such person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interest of the Registrant, and, with respect to any criminal action
or proceeding, the indemnified party had no reason to believe his or her conduct
was unlawful. The Registrant has entered into indemnification agreements with
its directors and executive officers and intends to enter into indemnification
agreements with any new directors and executive officers in the future.
The Registrant carries officer and director liability insurance with
respect to certain matters, including matters arising under the Securities Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant
10.1 1998 Stock Plan and forms of option agreement and stock
purchase agreement thereunder
10.2 1995 Employee Stock Purchase Plan, as amended, and form of
subscription agreement thereunder
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
-2-
EXHIBIT
NUMBER DESCRIPTION
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23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 6)
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 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.
2) That, for the purpose of determining any liability under the Securities
Act of 1933, as amended, 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 purposes of
determining any liability under the Securities Act of 1933, as amended,
each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange 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 Securities
Act of 1933, as amended, 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 Securities 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 Mountain View, State of California, on August 1,
2002.
IRIDEX CORPORATION
By: /s/ THEODORE A. BOUTACOFF
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Theodore A. Boutacoff
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Theodore A. Boutacoff and Robert
Kamenski, and each of them acting individually, as their true and lawful
attorneys and agents, each with full power of substitution, to sign and execute
on behalf of the undersigned any amendment or amendments to this Registration
Statement on Form S-8 (including post-effective amendments) and granting unto
said attorneys and agents, and each of them, full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the foregoing, as full to all intents and purposes as the undersigned
might or could do in person, and each of the undersigned does hereby ratify and
confirm all that said attorneys and agents, or their or his substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed on August 1, 2002 by the following
persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ THEODORE A. BOUTACOFF President and Chief Executive Officer and August 1, 2002
--------------------------------- Director (Principal Executive Officer)
Theodore A. Boutacoff
/s/ ROBERT KAMENSKI Chief Financial Officer (Principal Financial August 1, 2002
--------------------------------- and Accounting Officer)
Robert Kamenski
/s/ JOHN M. NEHRA Chairman of the Board August 1, 2002
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John M. Nehra
/s/ ROBERT K. ANDERSON Director August 1, 2002
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Robert K. Anderson
/s/ JAMES L. DONOVAN
--------------------------------- Director August 1, 2002
James L. Donovan
/s/ DONALD S. HAMMOND Director August 1, 2002
---------------------------------
Donald L. Hammond
/s/ JOSHUA MAKOWER Director August 1, 2002
---------------------------------
Joshua Makower
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
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5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to the Registrant
10.1 1998 Stock Plan and forms of option agreement and stock purchase
agreement thereunder
10.2 1995 Employee Stock Purchase Plan, as amended, and form of
subscription agreement thereunder
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Wilson Sonsini Goodrich & Rosati, Professional
Corporation (contained in Exhibit 5.1)
24.1 Power of Attorney (see page 5)