SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SURMODICS, INC.
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(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1356149
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(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
9924 West 74th Street
Eden Prairie, Minnesota 55344
(Address of Principal Executive Office and Zip Code)
SURMODICS, INC. 2003 EQUITY INCENTIVE PLAN
(Full Title of the Plan)
SurModics, Inc.
9924 West 74th Street
Eden Prairie, Minnesota 55344
(952) 829-2700
(Name, Address and Telephone Number, Including Area Code,
of Agent for Service)
COPIES TO:
Melodie R. Rose
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
CALCULATION OF REGISTRATION FEE
====================================================================================================================
PROPOSED
PROPOSED MAXIMUM MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED(1) PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
- ------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Options to Purchase
Common Stock under the
2003 Equity Incentive Indefinite $ 0.00 $ 0.00 $ 0.00
Plan
Common Stock issuable
upon exercise of
options granted under
the 2003 Equity
Incentive Plan(3) 600,000 shares $30.48 $18,288,000 $1,480
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TOTAL: $1,480
====================================================================================================================
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933, this
Registration Statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein
and any additional securities which may become issuable pursuant to
anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee and based upon the average of the high and low prices [the
bid and asked prices] of the Registrant's Common Stock on March 31, 2003.
(3) EACH SHARE OF COMMON STOCK INCLUDES A PREFERRED STOCK PURCHASE RIGHT
PURSUANT TO THE REGISTRANT'S SHAREHOLDER RIGHTS PLAN.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report on Form 10-K for the
year ended September 30, 2002 filed on December 30, 2002,
pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934, or either (I) the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of 1933 that
contains audited financial statements for the Registrant's
latest fiscal year for which such statements have been filed
or (II) the Registrant's effective registration statement on
Form 10 or 10-SB filed under the Securities Exchange Act of
1934 containing audited financial statements for the
Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the
fiscal year covered by the Registrant document referred to in
(a) above;
(c) If the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934, the
description of such class of securities contained in a
registration statement filed under such Act, including any
amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, prior to the
filing of a post-effective amendment which indicates that all securities offered
have been sold or which deregisters all such securities then remaining unsold,
shall be deemed to be incorporated by reference in this Registration Statement
and to be a part hereof from the date of filing of such documents.
The consolidated financial statements for the fiscal years ended
September 30, 2001 and 2002 included in the Annual Report on Form 10-K noted
above are incorporated herein by reference and were audited by Arthur Andersen
LLP. After reasonable efforts, we have not been able to obtain the written
consent of Arthur Andersen LLP for this registration statement as required by
Section 7 of the Securities Act because Arthur Andersen LLP is no longer in the
practice of public accountancy. Under these circumstances, Rule 437a under the
Securities Act permits us to dispense with the requirement under Section 7 of
the Securities Act to file such consent with this registration statement. The
absence of such consent may limit recovery by investors on certain claims. In
particular, and without limitation, investors will not be able to recover
against Arthur Andersen LLP under Section 11(a)(4) of the Securities Act for any
untrue statement of material fact contained in our consolidated financial
statements for year ended September 30, 2001 or any omissions to state a
material fact required to be stated therein.
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Item 4. Description of Securities.
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Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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Under Minnesota corporate law, a corporation shall, unless prohibited
or limited by its Articles of Incorporation or Bylaws, indemnify its directors,
officers, employees and agents against judgments, penalties, fines, settlements,
expenses and disbursements incurred by such person who was, or is threatened to
be, made a party to a proceeding by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation if generally, with
respect to the acts or omissions of the person complained of in the proceeding,
the person: (i) has not been indemnified by another organization with respect to
the same acts or omissions; (ii) acted in good faith, (iii) received no improper
personal benefit; (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (v) reasonably believed the
conduct was in the best interests of the corporation or, in certain
circumstances, reasonably believed that the conduct was not opposed to the best
interests of the corporation. Minnesota corporate law also provides that a
corporation may purchase and maintain insurance on behalf of any indemnified
party against any liability asserted against such person, whether or not the
corporation would have been required to indemnify the person against liability
under the provisions of Minnesota corporate law. The Registrant's Articles of
Incorporation and Bylaws do not limit the Registrant's obligation to indemnify
such persons.
The Registrant's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Registrant will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Registrant or its shareholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) dividends or other distributions of
corporate assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws or (v) any
transaction from which the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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5 Opinion and Consent of Fredrikson & Byron, P.A. relating to
the legality of securities under the SurModics, Inc. 2003
Equity Incentive Plan.
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23.1 Consent of Fredrikson & Byron, P.A. -- included in its opinion
filed as Exhibit 5.
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney.
Item 9. Undertakings.
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(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, represents a fundamental change in the
information set forth in the 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;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do 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 Securities Exchange Act of 1934 that are
incorporated by reference in the Registration
Statement.
(2) That, for the purposes 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
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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 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 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 final
adjudication of such issue.
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SIGNATURES
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The Registrant. 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 Eden Prairie and State of Minnesota, on the 17th
day of March, 2003.
SURMODICS, INC.
(the "Registrant")
By /s/ Dale R. Olseth
-----------------------------------------
Dale R. Olseth, Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
(Power of Attorney)
Each of the undersigned constitutes and appoints Dale R. Olseth and
Loren R. Miller his true and lawful attorney-in-fact and agent, each acting
alone, with full powers of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign the Form S-8
Registration Statement of SurModics, Inc. relating to the Company's 2003 Equity
Incentive Plan and any or all amendments or post-effective amendments to the
Form S-8 Registration Statement, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents, each
acting alone, 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, as fully to
all intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, each acting
alone, or their substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Signature Title Date
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/s/ Dale R. Olseth Chairman of the Board, March 17, 2003
- ------------------------- Chief Executive Officer
Dale R. Olseth (principal executive officer)
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/s/ Loren R. Miller Vice President and Controller March 17, 2003
- ------------------------- (principal financial and
Loren R. Miller accounting officer)
/s/ Patrick E. Guire Director March 17, 2003
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Patrick E. Guire, Ph.D.
/s/ Jose H. Bedoya Director March 17, 2003
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Jose H. Bedoya
/s/ Gerald B. Fischer Director March 17, 2003
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Gerald B. Fischer
Director ________, 2003
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Kenneth H. Keller, Ph.D.
Director ________, 2003
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David A. Koch
/s/ Kendrick B. Melrose Director March 17, 2003
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Kendrick B. Melrose
/s/ John A. Meslow Director March 17, 2003
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John A. Meslow
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SURMODICS, INC.
Form S-8 Registration Statement
EXHIBIT INDEX
Exhibit
Number Exhibit Description
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5 Opinion and Consent of Fredrikson & Byron, P.A. relating to the
legality of securities under the SurModics, Inc. 2003 Equity Incentive
Plan
23.1 Consent of Fredrikson & Byron, P.A. (See Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of attorney (See Signature Page)
EXHIBIT 5
FREDRIKSON & BYRON, P.A.
400 Pillsbury Center
200 South Sixth Street
Minneapolis, Minnesota 55402
Telephone: (612) 492-7000
Facsimile: (612) 492-7077
April 1, 2003
SurModics, Inc.
9924 West 74th Street
Eden Prairie, Minnesota 55344
Re: Registration Statement on Form S-8
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Ladies/Gentlemen:
We are acting as corporate counsel to SurModics, Inc. (the "Company")
in connection with the original registration by the Company on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act") of options and 600,000 shares (the "Shares") of Common Stock issuable
pursuant to the Company's 2003 Equity Incentive Plan (the "Plan").
In acting as such counsel and for the purpose of rendering this
opinion, we have reviewed copies of the following, as presented to us by the
Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of
Directors and shareholders of the Company pertaining to the
adoption and approval of the Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
1. The Shares are validly authorized by the Company's Articles of
Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by
the Company of the consideration for the Shares pursuant to
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By /s/ Melodie R. Rose
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Melodie R. Rose, Vice President
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EXHIBIT 23.2
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INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
SurModics, Inc. on Form S-8 of our report dated October 22, 2002, relating to
the financial statements of SurModics, Inc. as of and for the year ended
September 30, 2002, incorporated by reference in the Annual Report on Form 10-K
of SurModics, Inc. for the year ended September 30, 2002.
/s/ Deloitte & Touche LLP
Minneapolis, Minnesota
April 1, 2003