Securities Registration: Employee Benefit Plan (s-8)
May 03 2019 - 3:11PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May 3, 2019
Registration No. 333-
UNITED STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
Surmodics, Inc.
(Exact
name of Registrant as specified in its charter)
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Minnesota
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41-1356149
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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9924 West 74
th
Street
Eden Prairie, Minnesota 55344
(Address of principal executive offices) (Zip Code)
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Surmodics, Inc. 2019 Equity Incentive Plan
(Full title of the plan)
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Copy to:
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Bryan K. Phillips
Vice President, General Counsel and Secretary
9924 West 74
th
Street
Eden Prairie, Minnesota 55344
(952)
829-2700
(Name, address and telephone number
including area code, of agent for service)
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Nicole J. Leimer
Faegre Baker Daniels LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402-3901
(612)
766-7000
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Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated
filer, a smaller reporting company, or an emerging growth company. See the definitions of large accelerated
filer, accelerated filer, smaller reporting company, and emerging growth company in Rule
12b-2
of the Exchange Act.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated
filer
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☐
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Emerging growth company
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☐
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Smaller reporting company
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☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of securities
to be registered
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Amount
to be
registered
(1)
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Proposed
maximum
offering
price
per share (2)
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Proposed
maximum
aggregate
offering price (2)
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Amount of
registration fee
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Common Stock, $0.05 par value
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1,100,000 shares
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$42.09
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$46,299,000
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$5,611.44
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(1)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this
registration statement will also cover any additional shares of common stock, par value $.05 (Common Stock) of Surmodics, Inc. (the Company) that become issuable under the Surmodics, Inc. 2019 Equity Incentive Plan (the
Plan) by reason of any stock dividend, stock split, reorganization or other similar transaction effected without the Companys receipt of consideration that results in an increase in the number of outstanding shares of the Common
Stock.
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(2)
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Estimated solely for the purpose of determining the registration fee pursuant to the provisions of Rule
457(h)(1) and 457(c) under the Securities Act based on the average of the high and low sale prices per share of the Companys Common Stock as quoted on the Nasdaq Global Select Market on April 26, 2019.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information required by Part I of Form
S-8
will be sent or given to
employees as specified by Rule 428(b)(1) under the Securities Act. Such documents need not be filed with the Securities and Exchange Commission (the Commission) either as part of this registration statement or as prospectuses or
prospectus supplements pursuant to Rule 424 under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this form, taken together, constitute a prospectus that
meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed by the Company with the Commission pursuant to the Securities Exchange Act of 1934, as amended
(the Exchange Act) are incorporated by reference herein and shall be deemed to be a part hereof:
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(a)
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The Companys Annual Report on
Form
10-K
for the fiscal year ended September 30, 2018, filed with the Commission on November 30, 2018;
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(d)
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The description of the Companys common stock in the Companys
Form
8-A
filed with the Commission on February 25, 1998, or in any report, including any amendment, filed under the Exchange Act for the purpose of updating such description.
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All other documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to
the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement that indicates that all securities offered hereunder 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. In this registration statement, the Company refers to these documents, and the documents
enumerated above, as the incorporated documents.
Any statement contained in an incorporated document will be deemed to be
modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed incorporated document 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.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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Not applicable.
Item 6.
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Indemnification of Directors and Officers.
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The Company is subject to Minnesota Statutes Chapter 302A, the Minnesota Business Corporation Act (the Corporation Act).
Section 302A.521 of the Corporation Act provides in substance that, unless prohibited by its articles of incorporation or bylaws, a corporation must indemnify an officer or director who is made or threatened to be made a party to a proceeding
by reason of the former or present official capacity of the person against judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan, settlements, and reasonable
expenses, including attorneys fees and disbursements, incurred by such person in connection with the proceeding, if certain criteria are met. These criteria, all of which must be met by the person seeking indemnification, are (a) that
such person has not been indemnified by another organization or employee benefit plan for the same judgments, penalties, fines, including, without limitation, excise taxes assessed against the person with respect to an employee benefit plan,
settlements, and reasonable expenses, including attorneys fees and disbursements, incurred by the person in connection with the proceeding with respect to the same acts or omissions; (b) that such person must have acted in good faith;
(c) that no improper personal benefit was obtained by such person and such person satisfied certain statutory conflicts of interest provisions, if applicable; (d) that in the case of a criminal proceeding, such person had no reasonable
cause to believe that the conduct was unlawful; and (e) that, in the case of acts or omissions occurring in such persons performance in an official capacity, such person must have acted in a manner such person reasonably believed was in
the best interests of the corporation or, in certain limited circumstances, not opposed to the best interests of the corporation. In addition, Section 302A.521, subd. 3 requires payment by the Company, upon written request, of reasonable
expenses in advance of final disposition in certain instances. A decision as to required indemnification is made by a majority of the disinterested board of directors present at a meeting at which a disinterested quorum is present, or by a
designated committee of disinterested directors, by special legal counsel, by the disinterested shareholders, or by a court. The Companys articles of incorporation or bylaws impose no limitations on the applicability of Section 302A.521
of the Corporation Act.
The Company also maintains a director and officer insurance policy to cover the Company, its directors and its
officers against certain liabilities.
Item 7.
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Exemption From Registration Claimed.
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Not applicable.
See the Exhibit Index preceding the signature page.
(a) The Company 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;
(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 percent change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective registration statement; and
(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)(l)(i) and (a)(l)(ii) of this section do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under 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 Company hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Companys 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 plans
annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of
the 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 Company of
expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
INDEX TO EXHIBITS
(1)
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Incorporated by reference to Exhibit 3.1 of the Companys Quarterly Report on Form
10-Q
filed on July
29, 2016.
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(2)
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Incorporated by reference to Exhibit 3.2 of the Companys Current Report on Form
8-K
filed on December
23, 2015.
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(3)
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Incorporated by reference to Appendix A to the Companys Definitive Proxy Statement on Schedule 14A, filed
with the Commission on December
21, 2018.
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(4)
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Included in, and incorporated by reference to, Exhibit 5 hereto.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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, State of Minnesota, on
May 3, 2019.
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SURMODICS, INC.
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By
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/s/ Gary R. Maharaj
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Gary R. Maharaj
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President and Chief Executive Officer
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POWERS OF ATTORNEY
Each of the undersigned hereby appoints Gary R. Maharaj and Timothy J. Arens, and each of them (with full power to act alone), as attorneys
and agents for the undersigned, with full power of substitution, for and in the name, place and stead of the undersigned, to sign and file with the Securities and Exchange Commission under the Securities Act any and all amendments and exhibits to
this registration statement and any and all applications, instruments and other documents to be filed with the Securities and Exchange Commission pertaining to the registration of the securities covered hereby, with full power and authority to do
and perform any and all acts and things whatsoever requisite and necessary or desirable.
Pursuant to the requirements of the Securities
Act, this registration statement has been signed below by the following persons, representing a majority of the Board of Directors, in the capacities indicated on May 3, 2019.
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Signature
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Title
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Date
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/s/ Gary R. Maharaj
Gary R. Maharaj
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President and Chief Executive Officer (principal executive officer)
and Director
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May 3, 2019
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/s/ Timothy J. Arens
Timothy J. Arens
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Vice President, Finance and Chief Financial Officer (principal
financial officer)
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May 3, 2019
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/s/ John D. Manders
John D. Manders
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Corporate Controller (principal accounting officer)
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May 3, 2019
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/s/ Susan E. Knight
Susan E. Knight
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Chair of the Board of Directors
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May 3, 2019
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/s/ José H. Bedoya
José H. Bedoya
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Director
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May 3, 2019
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/s/ David R. Dantzker, M.D.
David R. Dantzker, M.D.
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Director
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May 3, 2019
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/s/ Lisa Wipperman Heine
Lisa Wipperman Heine
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Director
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May 3, 2019
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/s/ Ronald B. Kalich
Ronald B. Kalich
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Director
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May 3, 2019
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/s/ Shawn T McCormick
Shawn T McCormick
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Director
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May 3, 2019
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