Form S-8

As filed with the Securities and Exchange Commission on December 4, 2003

Registration No. 333-            

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

SONOSITE, INC.

(Exact name of Registrant as specified in its charter)

 

 

Washington   91-1405022

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification No.)

 

21919 30th Drive S.E.

Bothell, Washington 98021-3904

(Address of principal executive offices, including zip code)

 

 

Option Notice Agreement, dated September 11, 2003, between the Registrant and Henry (Skip) Krause

Option Notice Agreement, dated September 22, 2003, between the Registrant and Marla Koreis

 

 

KEVIN M. GOODWIN

President and Chief Executive Officer

SonoSite, Inc.

21919 30th Drive S.E.

Bothell, Washington 98021-3904

(425) 951-1200

(Name, address and telephone number, including area code, of agent for service)

 

 

Copy to:

 

    STEPHEN M. GRAHAM    
    Orrick, Herrington & Sutcliffe LLP    
    719 Second Avenue, Suite 900    
    Seattle, Washington 98104    

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities

to Be Registered

    Maximum
Amount to Be
Registered (1)		    Proposed
Maximum
Offering Price
Per Share		    Proposed
Maximum
Aggregate
Offering Price		    Amount of
Registration
Fee

Under individual option notice agreement in the form of Exhibit 99.1 (2)

    15,000 shares    $19.505    $292,575    $24.00

Under individual option notice agreement in the form of Exhibit 99.2 (3)

    20,000 shares    $20.675    $413,500    $34.00

TOTAL

    35,000 shares         $706,075    $58.00

 

(1) This Registration Statement shall also cover any additional shares of common stock that become issuable pursuant to such individual option letter agreements by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding shares of common stock.

 

(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the “Securities Act”), the computation is based on the exercise price per share of $19.505 as to outstanding but unexercised options to purchase an aggregate of 15,000 shares of common stock granted under an individual option notice agreement in the form of Exhibit 99.1.

 

(3) Pursuant to Rule 457(h) of the Securities Act, the computation is based on the exercise price per share of $20.675 as to outstanding but unexercised options to purchase an aggregate of 20,000 shares of common stock granted under an individual option notice agreement in the form of Exhibit 99.2.

 

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.   Incorporation of Documents by Reference.

 

The following documents filed with the Securities and Exchange Commission (the “Commission”) are hereby incorporated by reference:

 

(a) The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2002 pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which contains audited financial statements for the Registrant’s latest fiscal year for which such statements have been filed.

 

(b) The Registrant’s Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003.

 

(c) The Registrant’s Current Reports on Form 8-K filed on May 2, 2003, May 15, 2003, July 31, 2003, August 26, 2003 and September 5, 2003.

 

(d) The description of the Registrant’s Common Stock contained in the Registrant’s Registration Statement on Form 10 filed on February 13, 1998, and two amendments to such Form 10 filed on March 19, 1998 and March 31, 1998, under Section 12(g) of the Exchange Act.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment that indicates that all securities offered hereby have been sold or that deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of filing such documents.

 

Item 4.   Description of Securities.

 

Not applicable.

 

Item 5.   Interests of Named Experts and Counsel.

 

None.

 

Item 6.   Indemnification of Directors and Officers.

 

Article VI of the Registrant’s Restated Articles of Incorporation (the “Articles”) provides that the Registrant may indemnify and hold harmless to the fullest extent permitted by the Washington Business Corporation Act (the “WBCA”) or other applicable law each person who was or is made a party to or is threatened to be made a party to or is involved (including, without limitation, as a witness) in any actual or threatened action, suit or other proceeding, whether civil, criminal, derivative, administrative or investigative, by reason of the fact that he or she is or was a director, officer, employee or agent of the Registrant or, being or having been such a director, officer, employee or agent, he or she is or was serving at the request of the Registrant as a director, officer, employee, agent, trustee or in any other capacity of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action or omission in an official capacity or in any other capacity while serving as a director, officer, employee, agent, trustee or in any other capacity, against all expense, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, Employee Retirement Income Security Act of 1974 (“ERISA”) excise taxes or penalties and amounts to be paid in settlement) actually or reasonably incurred or suffered by such person in connection therewith. Such indemnification may continue as to a person who has ceased to be a director, officer, employee or agent of the Registrant and shall inure to the benefit of his or her heirs and personal representatives.

 

The Registrant may pay the expenses of a director, officer, employee or agent of the Registrant incurred in defending any such proceeding in advance of the final disposition of any such proceeding; provided, however, that the payment of such expenses in advance of the final disposition of a proceeding shall be made to or on behalf of a director, officer, employee or agent only upon delivery to the Registrant of an undertaking, by or on behalf of such director, officer, employee or agent, to repay all amounts so advanced if it shall ultimately be determined that such director, officer, employee or agent is not entitled to be indemnified under the Registrant’s Restated Articles of Incorporation or otherwise, which undertaking may be unsecured and may be accepted without reference to financial ability to make repayment.

 

II-1

No indemnification shall be provided under the Registrant’s Restated Articles of Incorporation to any such person if the Registrant is prohibited by the provisions of the WBCA or other applicable law as then in effect from paying such indemnification. The WBCA (Sections 23B.08.500 through 23B.08.600 of the Revised Code of Washington) authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”).

 

The WBCA includes a provision (Section 23B.08.320 of the Revised Code of Washington) that permits a corporation to limit a director’s liability to the corporation or its shareholders for monetary damages for his or her acts or omissions as a director, except in certain circumstances involving intentional misconduct, self-dealing or illegal corporate loans or distributions, or any transaction from which the director personally benefits. Article V of the Registrant’s Restated Articles of Incorporation contains provisions implementing, to the fullest extent permitted by Washington law, such limitations on a director’s liability to the Registrant and its shareholders.

 

The Registrant has entered into indemnification agreements with each of its directors, certain officers and other persons performing similar functions. These agreements, among other things, require the Registrant to indemnify each director and officer to the fullest extent permitted by Washington law, including indemnification for expenses such as attorneys’ fees, costs, judgments, fines, ERISA excise taxes or penalties, witness fees, and settlement amounts incurred by the director or officer in any action or proceeding, including any action by or in the right of the Registrant, arising out of the person’s services as a director or officer of the Registrant, any subsidiary of the Registrant or any other company or enterprise to which the person provides services at the Registrant’s request. The Registrant believes that its charter provisions and indemnification agreements are necessary to attract and retain qualified persons as directors and officers.

 

In addition, the Registrant maintains an insurance policy insuring its directors and officers for certain acts or omissions while acting in their official capacities.

 

Item 7.   Exemption From Registration Claimed.

 

Not applicable.

 

Item 8.   Exhibits.

 

Exhibit

Number

   

Description

  5.1    Opinion of Orrick, Herrington & Sutcliffe LLP regarding legality of the common stock being registered.
23.1    Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2    Consent of KPMG LLP, Independent Auditors.
24.1    Power of Attorney (see signature page).
99.1    Henry (Skip) Krause Option Notice Agreement.
99.2    Marla Koreis Option Notice Agreement.

 

II-2

Item 9.   Undertakings.

 

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;

 

(2) that, for purposes 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; and

 

(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.

 

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 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.

 

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 a 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 question has already 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.

 

II-3

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 Bothell, State of Washington, on this 2nd day of December, 2003.

 

SONOSITE, INC.

By:  

/s/     Michael J. Schuh        

   

Michael J. Schuh

Chief Financial Officer

 

POWER OF ATTORNEY

 

Each person whose individual signature appears below hereby authorizes Kevin M. Goodwin and Michael J. Schuh, or either of them, as attorneys-in-fact with full power of substitution, to execute in the name and on the behalf of each person, individually and in each capacity stated below, and to file any and all amendments to this registration statement, including any and all post effective amendments.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on this 2nd day of December, 2003.

 

Signature

   

Title

/s/    Kevin M. Goodwin        

Kevin M. Goodwin

   

President, Chief Executive Officer and Director (Principal Executive Officer)

/s/    Michael J. Schuh        

Michael J. Schuh

   

Chief Financial Officer (Principal Financial and Accounting Officer)

/s/    Kirby L. Cramer        

Kirby L. Cramer

    Chairman of the Board

/s/    Edward V. Fritzky        

Edward V. Fritzky

   

Director

Steven R. Goldstein, M.D.

   

Director

/s/    William G. Parzybok, Jr.        

William G. Parzybok, Jr.

   

Director

/s/    Jeffrey Pfeffer, Ph.D.        

Jeffrey Pfeffer, Ph.D.

   

Director

/s/    Richard S. Schneider, Ph.D.        

Richard S. Schneider, Ph.D.

   

Director

Jacques Souquet, Ph.D.

   

Director

 

II-4

EXHIBIT INDEX

 

Exhibit
Number
   

Description

  5.1    Opinion of Orrick, Herrington & Sutcliffe LLP as to the legality of the common stock being registered.
23.1    Consent of Orrick, Herrington & Sutcliffe LLP (included in Exhibit 5.1).
23.2    Consent of KPMG LLP, Independent Auditors.
24.1    Power of Attorney (see signature page).
99.1    Form of Henry (Skip) Krause Option Notice Agreement.
99.2    Form of Marla Koreis Option Notice Agreement