As filed with the Securities and Exchange Commission on August 12, 2003
Registration No. 333-_________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
SOMANETICS CORPORATION
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(Exact name of registrant as specified in its charter)
Michigan 38-2394784
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1653 East Maple Road, Troy, Michigan 48083-4208
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(Address of Principal Executive Offices) (Zip Code)
STOCK OPTION AGREEMENT, DATED AUGUST 1, 2002
SOMANETICS CORPORATION 1997 STOCK OPTION PLAN
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(Full title of the plans)
Bruce J. Barrett, President
1653 East Maple Road
Troy, Michigan 48083-4208
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(Name and address of agent for service)
(248) 689-3050
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum
Title of securities Amount to be maximum offering aggregate offering Amount of
to be registered registered price per share price registration fee
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Common Shares (1) 100,000 shares $2.30(2) $ 230,000.00
Common Shares (1) 450,000 shares $4.32(3) $1,944,000.00
Total 550,000 shares $2,174,000.00 $175.88
(1) $0.01 par value per share.
(2) Calculated pursuant to Rule 457(h) solely for the purpose of computing
the registration fee and based on the exercise price of the options.
(3) Calculated pursuant to Rule 457(h) solely for the purpose of computing
the registration fee and based on the average of the high and low sales
prices of the common shares, as quoted on The Nasdaq SmallCap Market,
on August 6, 2003.
Page 1 of 10 Pages
Exhibit Index is on Page 8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. Our Annual Report on Form 10-K for the fiscal year ended November
30, 2002 as filed with the Securities and Exchange Commission pursuant
to the Securities Exchange Act of 1934.
2. Our Quarterly Reports on Form 10-Q for the fiscal quarters ended
February 28, 2003 and May 31, 2003 as filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934,
and all other reports we filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of our fiscal year
ended November 30, 2002.
3. The description of our common shares included in our Prospectus,
dated March 20, 1991, included in our registration statement on Form
S-1 (file no. 33-38438) effective March 20, 1991, as filed with the
Securities and Exchange Commission pursuant to the Securities Act of
1933, under the caption "Description of Securities" on pages 41 through
46 of the Prospectus and incorporated by reference into our
Registration Statement on Form 8-A effective March 27, 1991 and filed
with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by us pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, before 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 of
this registration statement 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.
Under Sections 561-571 of the Michigan Business Corporation Act,
directors and officers of a Michigan corporation may be entitled to
indemnification by the corporation against judgments, expenses, fines and
amounts paid by the director or officer in settlement of claims brought against
them by third persons or by or in the right of the corporation if those
directors and officers acted in good faith and in a manner reasonably believed
to be in, or not opposed to, the best interests of the corporation or its
shareholders.
Page 2 of 10 Pages
We are obligated under our bylaws and an employment agreement with our
chief executive officer to indemnify our present or former directors or
executive officers, and we may indemnify any other person, to the fullest extent
now or hereafter permitted by law in connection with any actual or threatened
civil, criminal, administrative or investigative action, suit or proceeding
arising out of their past or future service to us or a subsidiary, or to another
organization at our request or at the request of one of our subsidiaries. In
addition, our Restated Articles of Incorporation limit certain personal
liabilities of our directors.
We have obtained Directors' and Officers' liability insurance. The
policy provides for $1,000,000 in coverage including prior acts dating to our
inception and liabilities under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of Somanetics Corporation,
incorporated by reference to Exhibit 3(i) to our Quarterly
Report on Form 10-Q for the quarter ended February 28, 1998.
4.2 Amended and Restated Bylaws of Somanetics Corporation,
incorporated by reference to Exhibit. 4.1 to our Registration
Statement on Form S-8 (file no. 33-93538) filed with the
Securities and Exchange Commission on June 16, 1995.
4.3 Somanetics Corporation 1997 Stock Option Plan, incorporated by
reference to Exhibit 10.9 to our Annual Report on Form 10-K
for the fiscal year ended November 30, 1996.
4.4 First Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.11 to our Annual
Report on Form 10-K for the fiscal year ended November 30,
1997.
4.5 Second Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.12 to our Annual
Report on Form 10-K for the fiscal year ended November 30,
1998.
4.6 Third Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.14 to our Annual
Report on Form 10-K for the fiscal year ended November 30,
1999.
4.7 Fourth Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.16 to our Annual
Report on Form 10-K for the fiscal year ended November 30,
2000.
Page 3 of 10 Pages
4.8 Fifth Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.1 to our
Quarterly Report on Form 10-Q for the quarter ended February
28, 2002.
4.9 Sixth Amendment to Somanetics Corporation 1997 Stock Option
Plan, incorporated by reference to Exhibit 10.18 to our Annual
Report on Form 10-K for the fiscal year ended November 30,
2002.
4.10 Stock Option Agreement, dated as of August 1, 2002, between
Somanetics Corporation and Dominic J. Spadafore, incorporated
by reference to Exhibit 10.3 to our Quarterly Report on Form
10-Q for the quarter ended August 31, 2002.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in
the opinion filed as Exhibit 5.1 to this registration
statement).
24.1 Powers of Attorney (included after the signature of the
Registrant contained on page 7 of this registration
statement).
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;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the 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 the registration statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) 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;
Page 4 of 10 Pages
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is on
Form S-3 or Form S-8, and 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 Securities Exchange Act
of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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 that is incorporated by reference in the
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 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 of 1933 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 of 1933 and will be governed by the final adjudication of such
issue.
EXPERTS
The financial statements incorporated in this registration statement by
reference from Somanetics Corporation's Annual Report on Form 10-K for the year
ended November 30, 2002 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference
(which report expresses an unqualified opinion and includes an explanatory
paragraph relating to a change in the method of accounting for intangible assets
to conform to Statement on Financial Accounting Standards No. 142), and have
been so incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing.
Page 5 of 10 Pages
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 Troy, State of Michigan, on August 12, 2003.
SOMANETICS CORPORATION
By: /s/ Bruce J. Barrett
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Bruce J. Barrett,
Its: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned
officers and directors of SOMANETICS CORPORATION, a Michigan corporation (the
"Company"), hereby constitutes and appoints Bruce J. Barrett, Mary Ann Victor
and William M. Iacona, and each of them, the true and lawful attorneys-in-fact
and agents of the undersigned, each with the power of substitution for him in
any and all capacities, with full power and authority in said attorneys-in-fact
and agents and in any one or more of them, to sign, execute and affix his seal
thereto and file the proposed registration statement on Form S-8 to be filed by
the Company under the Securities Act of 1933, as amended, which registration
statement relates to the registration and issuance of the Company's Common
Shares, par value $0.01 a share, pursuant to the Somanetics Corporation 1997
Stock Option Plan or pursuant to a Stock Option Agreement, dated August 1, 2002,
and any of the documents relating to such registration statement; any and all
amendments to such registration statement, including any amendment thereto
changing the amount of securities for which registration is being sought, and
any post-effective amendment, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority;
granting unto said attorneys, 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 premises in order to effectuate the same as fully to all intents
and purposes as he might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them, may
lawfully do or cause to be done by virtue hereof.
Page 6 of 10 Pages
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/ Bruce J. Barrett President and Chief Executive Officer August 12, 2003
------------------------------------ and a Director (Principal Executive Officer)
Bruce J. Barrett
/s/ William M. Iacona Vice President, Finance, Controller, August 12, 2003
------------------------------------ and Treasurer (Principal Financial Officer
William M. Iacona and Principal Accounting Officer)
/s/ Daniel S. Follis Director August 11, 2003
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Daniel S. Follis
/s/ James I. Ausman, M.D., Ph.D. Director August 8, 2003
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James I. Ausman, M.D., Ph.D.
Director August , 2003
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Robert R. Henry
/s/ A. Brean Murray Director August 11, 2003
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A. Brean Murray
Director August , 2003
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Joe B. Wolfe
Page 7 of 10 Pages
INDEX TO EXHIBITS
Exhibit
Number Description Page
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4.1 Restated Articles of Incorporation of Somanetics Corporation, incorporated by reference N/A
to Exhibit 3(i) to our Quarterly Report on Form 10-Q for the quarter ended February 28,
1998.
4.2 Amended and Restated Bylaws of Somanetics Corporation, incorporated by reference to N/A
Exhibit. 4.1 to our Registration Statement on Form S-8 (file no. 33-93538) filed with
the Securities and Exchange Commission on June 16, 1995.
4.3 Somanetics Corporation 1997 Stock Option Plan, incorporated by reference to N/A
Exhibit 10.9 to our Annual Report on Form 10-K for the fiscal year ended November 30,
1996.
4.4 First Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.11 to our Annual Report on Form 10-K for the fiscal year ended
November 30, 1997.
4.5 Second Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.12 to our Annual Report on Form 10-K for the fiscal year ended
November 30, 1998.
4.6 Third Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.14 to our Annual Report on Form 10-K for the fiscal year ended
November 30, 1999.
4.7 Fourth Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.16 to our Annual Report on Form 10-K for the fiscal year ended
November 30, 2000.
4.8 Fifth Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.1 to our Quarterly Report on Form 10-Q for the quarter ended
February 28, 2002.
4.9 Sixth Amendment to Somanetics Corporation 1997 Stock Option Plan, incorporated by N/A
reference to Exhibit 10.18 to our Annual Report on Form 10-K for the fiscal year ended
November 30, 2002.
4.10 Stock Option Agreement, dated as of August 1, 2002, between Somanetics Corporation and N/A
Dominic J. Spadafore, incorporated by reference to Exhibit 10.3 to our Quarterly
Report on Form 10-Q for the quarter ended August 31, 2002.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP. 9
23.1 Consent of Deloitte & Touche LLP. 10
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in the opinion filed as 9
Exhibit 5.1 to this registration statement).
24.1 Powers of Attorney (included after the signature of the Registrant contained on page 6 6
of this registration statement).
Page 8 of 10 Pages