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As filed with the Securities and Exchange Commission on August 17, 2001
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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CHOLESTECH CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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3347 INVESTMENT BOULEVARD
CALIFORNIA HAYWARD, CALIFORNIA 94545 94-3065493
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(STATE OF INCORPORATION) (ADDRESS, INCLUDING ZIP CODE (I.R.S. EMPLOYER
OF REGISTRANT'S PRINCIPAL IDENTIFICATION NUMBER)
EXECUTIVE OFFICES)
1999 NONSTATUTORY STOCK OPTION PLAN
2000 STOCK INCENTIVE PROGRAM
(FULL TITLE OF THE PLAN)
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WILLIAM W. BURKE
Vice President of Finance and Chief
Financial Officer
Cholestech Corporation
3347 Investment Boulevard
Hayward, California 94545
(510) 732-7200
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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Copies to:
CHRIS F. FENNELL, ESQ.
KATHERINE STEPHENS, ESQ.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
(650) 493-9300
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
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Common Stock, no par value, to
be issued under the 1999
Nonstatutory Stock Option
Plan (1) ....................... 500,000 shares $7.825 (2) $3,912,500.00 $978.13
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Common Stock, no par value, to
be issued under the 2000 Stock
Incentive Program (1)........... 605,000 shares $7.825 (2) $4,734,125.00 $1,183.53
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this
Registration Statement shall also cover any additional shares of the
Registrant's Common Stock that become issuable under the 1999
Nonstatutory Stock Option Plan and the 2000 Stock Incentive Program by
reason of any stock dividend, stock split, recapitalization or other
similar transaction affected without the receipt of consideration that
increases the number of the Registrant's outstanding shares of Common
Stock.
(2) Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee based upon the average of the high and
low prices of the Common Stock as reported on the Nasdaq National Market
on August 10, 2001.
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PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Cholestech Corporation (the "Company" or "Registrant") hereby
incorporates by reference in this registration statement the following
documents:
A. The Company's Annual Report on Form 10-K for the fiscal year
ended March 30, 2001 filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
B. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 29, 2001 filed pursuant to Section 13(a) of the Exchange Act.
C. The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A as filed with the Securities
and Exchange Commission (the "Commission") on May 4, 1992 pursuant to Section
12(b) of the 1934 Act and any amendments or reports filed with the Commission
for the purpose of updating such description.
D. The description of the Company's Preferred Stock Purchase
Rights contained in the Company's Registration Statement on Form 8-A as filed
with the Commission on January 27, 1997 pursuant to Section 12(b) of the
Exchange Act.
In addition, 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,
as amended, prior to the filing of a post-effective amendment to this
registration statement 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 in this registration statement and to be
a 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
As permitted by Section 204(a) of the California General Corporation
Law, the Registrant's Articles of Incorporation eliminate a director's personal
liability for monetary damages to the Registrant and its shareholders arising
from a breach or alleged breach of the director's fiduciary duty, except for
liability arising under Sections 310 and 316 of the California General
Corporation Law or liability for (i) acts or omissions that involve intentional
misconduct or knowing and culpable violation of law, (ii) acts or omissions that
a director believes to be contrary to the best interests of the Registrant or
its shareholders or that involve the absence of good faith on the part of the
director, (iii) any transaction from which a director derived an improper
personal benefit, (iv) acts or omissions that show a reckless
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disregard for the director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of serious injury
to the Registrant or its shareholders and (v) acts or omissions that constitute
an unexcused pattern of inattention that amounts to an abdication of the
director's duty to the Registrant or its shareholders. This provision does not
eliminate the directors' duty of care, and in appropriate circumstances
equitable remedies such as an injunction or other forms of non-monetary relief
would remain available under California law. Sections 204(a) and 317 of the
California General Corporation Law authorize a corporation to indemnify its
directors, officers, employees and other agents in terms sufficiently broad to
permit indemnification (including reimbursement for expenses) under certain
circumstances for liabilities arising under the Securities Act of 1933, as
amended (the "Securities Act").
The Registrant's Articles of Incorporation and Bylaws contain provisions
covering indemnification of corporate directors, officers and other agents
against certain liabilities and expenses incurred as a result of proceedings
involving such persons in their capacities as directors, officers, employees or
agents, including proceedings under the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). The Registrant has
entered into Indemnification Agreements with its directors and executive
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit
Number Documents
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4.1 1999 Nonstatutory Stock Option Plan and form of agreement
thereunder
4.2 2000 Stock Incentive Program and form of agreement thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page 5)
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 the registration statement or any material change to
such information in the registration statement.
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(2) That, for the purpose of determining any liability
under the Securities Act of 1933, as amended (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 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 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 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 in successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the
securities being registered hereunder, 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 of 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, the
Registrant, Cholestech Corporation, a corporation organized and existing under
the laws of the State of California, 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 Hayward, State of
California, on this 17th day of August 2001.
CHOLESTECH CORPORATION
By: /s/ WARREN E. PINCKERT II
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Warren E. Pinckert II
President, Chief Executive Officer
and Director (Principal Executive
Officer)
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Warren E. Pinckert II and William W.
Burke, jointly and severally, his attorneys-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 each of 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 DATES INDICATED.
SIGNATURE TITLE DATE
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/s/ WARREN E. PINCKERT II President, Chief Executive Officer and August 17, 2001
--------------------------------- Director (Principal Executive Officer)
Warren E. Pinckert II
/s/ WILLIAM W. BURKE Vice President of Finance, Chief Financial August 17, 2001
--------------------------------- Officer, Treasurer and Secretary (Principal
William W. Burke Financial and Accounting Officer)
/s/ JOHN H. LANDON Director August 17, 2001
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John H. Landon
/s/ MICHAEL D. CASEY Director August 17, 2001
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Michael D. Casey
/s/ JOHN L. CASTELLO Director August 17, 2001
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John L. Castello
/s/ MOLLY J. COYE Director August 17, 2001
---------------------------------
Molly J. Coye
/s/ LARRY Y. WILSON Director August 17, 2001
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Larry Y. Wilson
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CHOLESTECH CORPORATION
REGISTRATION STATEMENT ON FORM S-8
INDEX TO EXHIBITS
Exhibit
Number Documents
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4.1 1999 Nonstatutory Stock Option Plan and form of agreement
thereunder
4.2 2000 Stock Incentive Program and form of agreement thereunder
5.1 Opinion of counsel as to legality of securities being registered
23.1 Consent of Counsel (contained in Exhibit 5.1)
23.2 Consent of Independent Auditors
24.1 Power of Attorney (see page 5)