-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, CuvIHkTxN1A10UAnCq+kopoU4C/7UGlINo6HZ75kgQ2y4bbWq4kbIB2RBpHRRskk Eaqb5s7P4P7zvCVrS3787A== 0001193125-04-059774.txt : 20040409 0001193125-04-059774.hdr.sgml : 20040409 20040409123123 ACCESSION NUMBER: 0001193125-04-059774 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20040409 EFFECTIVENESS DATE: 20040409 FILER: COMPANY DATA: COMPANY CONFORMED NAME: OPTICAL SENSORS INC CENTRAL INDEX KEY: 0000907658 STANDARD INDUSTRIAL CLASSIFICATION: SURGICAL & MEDICAL INSTRUMENTS & APPARATUS [3841] IRS NUMBER: 411643592 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-114359 FILM NUMBER: 04726621 BUSINESS ADDRESS: STREET 1: 7615 GOLDEN TRIANGLE DRIVE STREET 2: STE A CITY: EDEN PRARIE STATE: MN ZIP: 55344 BUSINESS PHONE: 6179445857 MAIL ADDRESS: STREET 1: 7615 GOLDEN TRIANGLE DR STE A CITY: EDEN PRAIRIE STATE: MN ZIP: 55344 S-8 1 ds8.txt FORM S-8 As filed with the Securities and Exchange Commission on April 9, 2004 Registration No. 333-_____ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- OPTICAL SENSORS INCORPORATED (Exact name of registrant as specified in its charter) Delaware 41-1643592 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 7615 Golden Triangle Drive, Suite C 55344-3733 Minneapolis, Minnesota (Zip Code) (Address of Principal Executive Offices) ----------------------- OPTICAL SENSORS INCORPORATED 2003 STOCK OPTION PLAN (Full title of the plan) ----------------------- Wesley G. Peterson Chief Financial Officer Optical Sensors Incorporated 7615 Golden Triangle Drive, Suite C Minneapolis, MN 55344-3733 (952) 944-5857 (Name, address and telephone number, including area code, of agent for service) ------------------------- Approximate date of commencement of proposed sale to the public: Immediately upon the filing of this Registration Statement -------------------- CALCULATION OF REGISTRATION FEE
================================================================================================================= Title of securities to Amount to be Proposed maximum offering Proposed maximum Amount of be registered (1) registered (2) price per unit (3) aggregate offering price registration fee - ----------------------------------------------------------------------------------------------------------------- Common Stock, par value $0.01 per share 257,757 $4.20 $1,082,580 $137.17 =================================================================================================================
(1) This Registration Statement also includes Preferred Share Purchase Rights, which are attached to all shares of Common Stock issued, pursuant to the terms of the Registrant's Rights Agreement dated December 3, 1996, as amended. (2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this Registration Statement includes an indeterminate amount of additional shares of common stock to be offered or sold as a result of the anti-dilution provisions of the employee benefit plan described in this Registration Statement. (3) Estimated solely for the purpose of calculating the amount of the registration fee and calculated pursuant to Rule 457(h) under the Securities Act as follows: (i) with respect to options to purchase shares previously granted under the plan, on the basis of the weighted average exercise price of such option grants, and (ii) with respect to options to be granted under the plan, on the basis of the average of the bid and ask prices of the Registrant's Common Stock on April 7, 2004, as quoted on the Over-the-Counter Bulletin Board. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by Optical Sensors Incorporated (the "Registrant" or the "Company") (File No. 000-27600) with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) The Company's Annual Report on Form 10-KSB for the fiscal year ended December 31, 2003; (2) All other reports filed by the Company pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") since December 31, 2003, except Current Reports on Form 8-K to the extent they contain information "furnished" pursuant to the instructions thereof; and (3) The description of the Company's Common Stock and Preferred Share Purchase Rights contained in the Company's Registration Statement on Form 8-A filed with the Commission on December 6, 1996 pursuant to Section 12 of the Exchange Act, including any amendments or reports filed for the purpose of updating such description. All documents filed by the Company with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered pursuant to this Registration Statement have been sold or that deregisters all shares of Common Stock 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 financial statements of the Company appearing in the Company's Annual Report (Form 10-KSB) for the year ended December 31, 2003, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as experts in accounting and auditing. Item 4. Description of Securities. Not applicable. Company's Common Stock and Preferred Stock Purchase Rights to be offered pursuant to this Registration Statement have been registered under Section 12 of the Exchange Act. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Delaware Law and the Company's Restated Certificate of Incorporation provide that the Company shall, under certain circumstances and subject to certain limitations, indemnify any director, officer, employee or agent of the Company made or threatened to be made a party to a proceeding, by reason of the former or present official capacity (as defined) of the person, against judgments, penalties, fines, settlements and reasonable expenses incurred by the person in connection with the proceeding if certain statutory standards are met. Any such person is also entitled, subject to certain limitations, to payment or reimbursement of reasonable expenses in advance of the final disposition of the proceeding. The Company also maintains a directors and officers insurance policy pursuant to which directors and officers of the Company are insured against liability for certain actions in their capacity as directors and officers. Item 7. Exemptions from Registration Claimed. Not applicable. No securities are to be re-offered or resold pursuant to this Registration Statement. Item 8. Exhibits. Exhibit No. Item ---------- ----- 3.1 Restated Certificate of Incorporation of the Company. 3.2 Amendment to Restated Certificate of Incorporation of the Company 3.3 Certificate of Designation, Preferences and Rights of Series A Junior Preferred Stock. 3.4 Certificate of Designation of Rights and Preferences of Series A Preferred Stock. 3.5 Bylaws of the Company, as amended. 3.6 Certificate of Designation of Rights and Preferences of Series B Preferred Stock. 4.1 Specimen Common Stock Certificate 4.2 Warrant dated November 6, 1992 issued to Comdisco, Inc. 4.3 Warrant Dated August 31, 1995 issued to Comdisco, Inc. 4.4 Rights Agreement dated as of December 3, 1996 between the Company and Norwest Bank Minnesota, N.A. 4.5 Amendment No. 1 to Rights Agreement dated as of March 10, 2000 between the Company and Norwest Bank Minnesota, N.A. 4.6 Amendment No. 2 to Rights Agreement dated as of August 8, 2000 between the Company and Wells Fargo Bank, N.A. 2 Exhibit No. Item ---------- ----- 4.7 Amendment No. 3 to Rights Agreement dated as of April 19, 2001 between the Company and Wells Fargo Bank, N.A. 4.8 Amendment No. 4 to Rights Agreement, dated as of September 13, 2002, between the Company and Wells Fargo Bank Minnesota N.A., the successor of Norwest Bank Minnesota, N.A. 5.1 Opinion of Oppenheimer, Wolff & Donnelly LLP 23.1 Consent of Ernst & Young LLP 23.2 Consent of Oppenheimer Wolff & Donnelly LLP 24.1 Power of Attorney 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; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this 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) under the Securities Act of 1933, as amended (the "Securities Act") 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 this Registration Statement or any material change to such information in this Registration Statement. Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement. 3 (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 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 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 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 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. 4 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 of 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 Minneapolis, State of Minnesota, on April 9, 2004. OPTICAL SENSORS By: /s/ Paulita M. LaPlante ----------------------------- Paulita M. LaPlante President and Chief Executive Officer POWER OF ATTORNEY Each person whose signature appears below constitutes and appoints Paulita M. LaPlante and Wesley G. Peterson, and each of them, his or her true and lawful attorney-in-fact and agent with full powers of substitution and resubstitution, for and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this 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 attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute or substitutes, may lawfully do or cause to be done by virtue thereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on April 9, 2004 by the following persons in the capacities indicated. Name Title - ---- ------ /s/ Paulita M. LaPlante President, Chief Executive Officer and - ---------------------------------- Director (principal executive officer) Paulita M. LaPlante /s/ Wesley G. Peterson Chief Financial Officer, Vice President - ---------------------------------- of Finance and Administration and Wesley G. Peterson Secretary (principal financial and accounting officer) /s/ Richard B. Egen Director - ---------------------------------- Richard B. Egen /s/ Charles D. Snead, Jr. Director - ---------------------------------- Charles D. Snead, Jr. INDEX TO EXHIBITS
Exhibit No. Item Method of Filing - ---------- ---- ---------------- 3.1 Restated Certificate of Incorporation of the Incorporated by reference to Exhibit 3.3 Company. contained in the Company's Registration Statement on Form S-1 (File No. 33-99904). 3.2 Amendment to Restated Certificate of Incorporated by reference to Exhibit 3(i) Incorporation of the Company contained in the Company's Registration Statement on Form 8-A12G/A dated September 16, 2002 (File No. 0-27600). 3.3 Certificate of Designation, Preferences and Incorporated by reference to Exhibit 3.2 Rights of Series A Junior Preferred Stock. contained in the Company's Annual Report on Form 10-K for the year ended December 31, 1998 (File No. 0-27600). 3.4 Certificate of Designation of Rights and Incorporated by reference to Exhibit 4.1 Preferences of Series A Preferred Stock. contained in the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2000 (File No. 0-27600). 3.5 Bylaws of the Company, as amended. Incorporated by reference to Exhibit 3.3 contained in the Company's Annual Report on Form 10-K for the year ended December 31, 1998 (File No. 0-27600). 3.5 Certificate of Designation of Rights and Incorporated by reference to Exhibit 3.1 Preferences of Series B Preferred Stock. contained in the Company's Current Report on Form 8-K filed June 24, 2003 (File No. 0-27600). 4.1 Specimen Common Stock Certificate Incorporated by reference to Exhibit 4.1 contained in the Company's Registration Statement on Form S-1 (File No. 33-99904). 4.2 Warrant dated November 6, 1992 issued to Incorporated by reference to Exhibit 4.8 Comdisco, Inc. contained in the Company's Registration Statement on Form S-1 (File No. 33-99904). 4.3 Warrant Dated August 31, 1995 issued to Incorporated by reference to Exhibit 4.9 Comdisco, Inc. contained in the Company's Registration Statement on Form S-1 (File No. 33-99904).
4.4 Rights Agreement dated as of December 3, 1996 Incorporated by reference to Exhibit 4.1 between the Company and Norwest Bank Minnesota, contained in the Company's Current Report on Form N.A. 8-K dated December 3, 1996 (File No. 0-27600). 4.5 Amendment No. 1 to Rights Agreement dated as of Incorporated by reference to Exhibit 10.1 March 10, 2000 between the Company and Norwest contained in the Company's Current Report on Form Bank Minnesota, N.A. 8-K dated March 10, 2000 (File No. 0-27600). 4.6 Amendment No. 2 to Rights Agreement dated as of Incorporated by reference to Exhibit 10.1 August 8, 2000 between the Company and Wells contained in the Company's Quarterly Report on Fargo Bank, N.A. Form 10-Q for the quarter ended June 30, 2000 (File No. 0-27600). 4.7 Amendment No. 3 to Rights Agreement dated as of Incorporated by reference to Exhibit 10.8 to the April 19, 2001 between the Company and Wells Company's Quarterly Report on Form 10-Q for the Fargo Bank, N.A. quarter ended March 31, 2001 (File No. 0-27600). 4.8 Amendment No. 4 to Rights Agreement, dated as of Incorporated by reference to Exhibit 4.5 September 13, 2002, between the Company and contained in the Company's Registration Statement Wells Fargo Bank Minnesota N.A., the successor on Form 8-A12G/A dated September 16, 2002 (File of Norwest Bank Minnesota, N.A. No. 0-27600). 5.1 Opinion of Oppenheimer, Wolff & Donnelly LLP Filed electronically herewith. 23.1 Consent of Ernst & Young LLP Filed electronically herewith. 23.2 Consent of Oppenheimer Wolff & Donnelly LLP Included in Exhibit 5.1. 24.1 Power of Attorney Included on the signature page to this Registration Statement.
EX-5.1 3 dex51.txt OPINION OF OPPENHEIMER, WOLFF & DONNELLY LLP Exhibit 5.1 [Oppenheimer Wolff & Donnelley LLP Letterhead] April 9, 2004 Securities and Exchange Commission Attention: Division of Corporation Finance 450 Fifth Street N.W. Washington, D.C. 20549 Re: Optical Sensors Incorporated Registration Statement on Form S-8 Ladies and Gentlemen: We have acted as counsel to Optical Sensors Incorporated, a Delaware corporation (the "Company"), in connection with the registration by the Company of 257,757 shares of common stock, par value $0.01 per share, including the Preferred Share Purchase Rights attached thereto (the "Common Stock"), of the Company issuable under the Company's 2003 Stock Option Plan, pursuant to a registration statement on Form S-8 filed with the Securities and Exchange Commission on the date hereof (the "Registration Statement"). The 257,757 shares of Common Stock of the Company issuable under the Company's 2003 Stock Option Plan (the "Plan") are collectively referred to herein as the "Shares." In acting as counsel for the Company and arriving at the opinions expressed below, we have examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company, agreements and other instruments, certificates of officers and representatives of the Company, certificates of public officials and other documents as we have deemed necessary or appropriate as a basis for the opinions expressed herein. In connection with our examination, we have assumed the genuineness of all signatures, the authenticity of all documents tendered to us as originals, the legal capacity of all natural persons and the conformity to original documents of all documents submitted to us as certified or photostatic copies. Based on the foregoing, and subject to the qualifications and limitations stated herein, it is our opinion that: 1. The Company has the corporate authority to issue the Shares in the manner and under the terms set forth in the Registration Statement. 2. The Shares have been duly authorized and, when issued, delivered and paid for in accordance with the Plan as set forth in the Registration Statement, will be validly issued, fully paid and nonassessable. We express no opinion with respect to laws other than those of the State of Minnesota, the Delaware General Corporation Law and the federal laws of the United States of America, and we assume no responsibility as to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement and to its use as part of the Registration Statement. Very truly yours, OPPENHEIMER WOLFF & DONNELLY LLP /s/ Oppenheimer Wolff & Donnelly LLP EX-23.1 4 dex231.txt CONSENT OF ERNST & YOUNG LLP Exhibit 23.1 CONSENT OF ERNST & YOUNG LLP TO INCORPORATION BY REFERENCE We consent to the reference to our firm under the heading "Incorporation of Documents by Reference" in the Registration Statement of Optical Sensors Incorporated on Form S-8 and the related Prospectus pertaining to the Optical Sensors Incorporated 2003 Stock Option Plan, and to the incorporation by reference therein of our report dated February 27, 2004 with respect to the financial statements of Optical Sensors Incorporated included in its Annual Report on Form 10-KSB for the year ended December 31, 2003, filed with the Securities and Exchange Commission. --------------------------- April 7, 2004 Ernst & Young LLP /s/ Ernst & Young LLP -----END PRIVACY-ENHANCED MESSAGE-----