As filed with the Securities and Exchange Commission on October 11, 2001
Registration No. 333-___
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
_____________________
THERASENSE, INC.
(Exact name of Registrant as specified in its charter)
_____________________
Delaware 94-3267373
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
TheraSense, Inc.
1360 South Loop Road
Alameda, California 94502
(510) 749-5400
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
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2001 EMPLOYEE STOCK PURCHASE PLAN
_____________________
W. Mark Lortz
President and Chief Executive Officer
TheraSense, Inc.
1360 South Loop Road
Alameda, California 94502
(510) 749-5400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
_____________________
Copy to:
Karen A. Dempsey, Esq.
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Street Tower, Suite 3300
San Francisco, CA 94105
(415) 947-2000
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CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Amount of
Amount to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered Per Share (1) Offering Price Fee
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Common Stock $ .001 par value
Issuable under:
2001 Employee Stock Purchase Plan 1,000,000 $16.15 $16,150,000 $4,037.50
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(1) Estimated pursuant to Rule 457(a) solely for the purpose of calculating the
registration fee, whereby the estimated proposed maximum offering price per
share is $16.15 (85% of $19.00, the initial price at which our common stock was
sold to the public on October, 11 2001). Pursuant to the 2001 Employee Stock
Purchase Plan, the purchase price of a share of common stock shall mean an
amount equal to 85% of the lower of the fair market value of a share of common
stock at the beginning of an offering period or after a purchase period ends.
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THERASENSE, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Explanatory Note
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This Registration Statement on From S-8 is being filed for the purpose of
registering 1,000,000 shares of the Registrant's Common Stock to be purchased
under the Registrant's 2001 Employee Stock Purchase Plan (the "2001 ESPP").
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information filed with the Securities and
Exchange Commission (the "Commission") by the registrant are incorporated herein
by reference:
(a) TheraSense's Registration Statement on Form S-1 (File No.
333-64456) filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"), declared effective on October 11, 2001.
(b) The description of the Registrant's common stock which is contained
in the Registrant's Registration Statement on Form 8-A declared effective by the
Commission on October 11, 2001 pursuant to Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and any description of any
securities of the Registrant which is contained in any registration statement
filed after the date hereof under Section 12 of the Exchange Act, including any
amendment or report filed for the purpose of updating any such description.
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 to this Registration Statement which indicates that all
securities offered hereby have been sold or which deregisters all securities
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.
The class of securities to be offered is registered under Section 12(g) of
the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Various legal matters with respect to the validity of the Common Stock
issued and sold under the 2001 Employee Stock Purchase Plan will be passed upon
for us by Wilson Sonsini Goodrich & Rosati, P.C., San Francisco, California.
An investment partnership comprised of some current and former members of Wilson
Sonsini Goodrich & Rosati and one current member of Wilson Sonsini Goodrich &
Rosati, beneficially own an aggregate of 34,153 shares of the Registrant's
Common Stock. These shares have an aggregate value of $648,907.00
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law. Article
VIII of our Amended and Restated Certificate of Incorporation provides for the
indemnification of directors to the fullest extent permissible under Delaware
law. Article VI of our Amended and Restated Bylaws provides for the
indemnification of officers, directors and third parties acting on our behalf if
such person acted in good faith and in a manner reasonably believed to be in and
not opposed to our best interest, and, with respect to any criminal action or
proceeding, the indemnified party had no reason to believe his or her conduct
was unlawful.
We have entered into indemnification agreements with our directors and
executive officers, in addition to indemnification provided for in our charter
documents, and we intend to enter into indemnification agreements with any new
directors and executive officers in the future.
We intend to purchase and maintain insurance on behalf of any person who is
or was a director or officer against any loss arising from any claim asserted
against him or her and incurred by him or her in any such capacity, subject to
certain exclusions.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
Number Description of Document
----------------- -------------------------------------------------------------
4.1* 2001 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page S-1).
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* Incorporated by Reference to Exhibit 10.3 of the Registrant's Registration
Statement on Form S-1 (Registration No. 333-64456) declared effective by the
Commission on October 11, 2001.
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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.
(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 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 law, the Registrant's Amended and Restated
Certificate of Incorporation, Amended and Restated Bylaws, indemnification
agreements, 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 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, as
amended, 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 Alameda, State of California, on October 11,
2001.
By: /s/ W. Mark Lortz
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W. Mark Lortz
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints W.
Mark Lortz, Charles T. Liamos and Robert D. Brownell jointly and severally, his
or her attorneys-in-fact, each with the power of substitution, for him or her 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 attorney-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, as
amended, this Registration Statement of Form S-8 has been signed by the
following persons in the capacities and on the dates indicated.
Signature Title Date
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/s/ W. Mark Lortz President, Chief Executive Officer and October 11, 2001
------------------------------------------ Chairman of the Board (Principal
W. Mark Lortz Executive Officer)
/s/ Charles T. Liamos Chief Financial Officer and Vice October 11, 2001
------------------------------------------ President (Principal Financial and
Charles T. Liamos Accounting Officer)
/s/ Ephraim Heller Director October 11, 2001
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Ephraim Heller
/s/ Annette J. Campbell-White Director October 11, 2001
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Annette J. Campbell-White
/s/ Mark J. Gainor Director October 11, 2001
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Mark J. Gainor
/s/ Ross A. Jaffe, M.D. Director October 11, 2001
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Ross A. Jaffe
/s/ Michael McNamara Director October 11, 2001
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Michael McNamara
/s/ Robert R. Momsen Director October 11, 2001
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Robert R. Momsen
/s/ Richard P. Thompson Director October 11, 2001
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Richard P. Thompson
S-1
INDEX TO EXHIBITS
Exhibit
Number Description of Document
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4.1* 2001 Employee Stock Purchase Plan
5.1 Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation.
23.1 Consent of Independent Accountants.
23.2 Consent of Counsel (contained in Exhibit 5.1).
24.1 Power of Attorney (see page S-1).
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* Incorporated by Reference to Exhibit 10.3 of the Registrant's Registration
Statement on Form S-1 (Registration No. 333-64456) declared effective by the
Commission on October 11, 2001.
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