As filed with the Securities and Exchange Commission on June 1, 2005
Registration No. 333-______________
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UNITED STATES
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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SOMANETICS CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 38-2394784
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1653 East Maple Road, Troy, Michigan 48083-4208
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(Address of Principal Executive Offices) (Zip Code)
SOMANETICS CORPORATION 2005 STOCK INCENTIVE PLAN
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(Full title of the plan)
Bruce J. Barrett, President
1653 East Maple Road
Troy, Michigan 48083-4208
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(Name and address of agent for service)
(248) 689-3050
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of securities Amount to be maximum offering maximum aggregate Amount of
to be registered registered price per share offering price registration fee
---------------- ---------------- ---------------- ----------------- -----------------
Common Shares(1) 71,216 shares $ 13.55(2) $ 964,976.80
Common Shares(1) 30,000 shares $ 14.92(2) $ 447,600.00
Common Shares(1) 498,784 shares $ 18.22(3) $ 9,087,844.48
---------------- -------------- ---------
Total 600,000 shares $10,500,421.28 $1,235.90
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(1) $0.01 par value per share.
(2) Calculated pursuant to Rule 457(h) solely for the purpose of computing the
registration fee and based on the exercise price of the options.
(3) Calculated pursuant to Rule 457(h) solely for the purpose of computing the
registration fee and based on the average of the high and low sales prices
of the common shares, as quoted on The Nasdaq SmallCap Market, on May 25,
2005.
Page 1 of 10 Pages
Exhibit Index is on Page 8
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed below are incorporated by reference in this
registration statement:
1. Our Annual Report on Form 10-K for the fiscal year ended November 30,
2004 as filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934.
2. Our Current Reports on Form 8-K, dated January 13, 2005, February 24,
2005, March 15, 2005, April 21, 2005 and May 4, 2005 and our Quarterly
Report on Form 10-Q for the fiscal quarter ended February 28, 2005, all as
filed with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, and all other reports we filed pursuant
to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 since the
end of our fiscal year ended November 30, 2004.
3. The description of our common shares included in our Prospectus, dated
March 20, 1991, included in our registration statement on Form S-1 (file
no. 33-38438) effective March 20, 1991, as filed with the Securities and
Exchange Commission pursuant to the Securities Act of 1933, under the
caption "Description of Securities" on pages 41 through 46 of the
Prospectus and incorporated by reference into our Registration Statement
on Form 8-A effective March 27, 1991 and filed with the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by us pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, before the filing of a
post-effective amendment which indicates that all securities offered 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 part of
this registration statement 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.
Page 2 of 10 Pages
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Sections 561-571 of the Michigan Business Corporation Act, directors
and officers of a Michigan corporation may be entitled to indemnification by the
corporation against judgments, expenses, fines and amounts paid by the director
or officer in settlement of claims brought against them by third persons or by
or in the right of the corporation if those directors and officers acted in good
faith and in a manner reasonably believed to be in, or not opposed to, the best
interests of the corporation or its shareholders.
We are obligated under our bylaws and an employment agreement with our
chief executive officer to indemnify our present or former directors or
executive officers, and we may indemnify any other person, to the fullest extent
now or hereafter permitted by law in connection with any actual or threatened
civil, criminal, administrative or investigative action, suit or proceeding
arising out of their past or future service to us or a subsidiary, or to another
organization at our request or at the request of one of our subsidiaries. In
addition, our Restated Articles of Incorporation limit certain personal
liabilities of our directors.
We have obtained Directors' and Officers' liability insurance. The policy
provides for $2,000,000 in coverage including prior acts dating to our inception
and liabilities under the Securities Act of 1933.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Articles of Incorporation of Somanetics Corporation,
incorporated by reference to Exhibit 3(i) to our Quarterly Report on
Form 10-Q for the quarter ended February 28, 1998.
4.2 Amended and Restated Bylaws of Somanetics Corporation, incorporated
by reference to Exhibit. 3(ii) to our Annual Report on Form 10-K for
the fiscal year ended November 30, 2003.
4.3 Somanetics Corporation 2005 Stock Incentive Plan, incorporated by
reference to Exhibit 10.1 to our Current Report on Form 8-K, dated
February 24, 2005.
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in the
opinion filed as Exhibit 5.1 to this registration statement).
Page 3 of 10 Pages
24.1 Powers of Attorney (included after the signature of the Registrant
contained on page 6 of this registration statement).
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 of 1933;
(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% 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 the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and 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 Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
Provided further, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the registration statement is for an
offering of asset-backed securities on Form S-1 or Form S-3, and the
information required to be included in a post-effective amendment is
provided pursuant to Item 1100(c) of Regulation AB.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new
Page 4 of 10 Pages
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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or 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 of 1933 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 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 Act and will
be governed by the final adjudication of such issue.
EXPERTS
The financial statements incorporated in this registration statement by
reference from Somanetics Corporation's Annual Report on Form 10-K for the year
ended November 30, 2004 have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their report, which
is incorporated herein by reference, and have been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
Page 5 of 10 Pages
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 Troy, State of Michigan, on May 26, 2005.
SOMANETICS CORPORATION
By: /s/ BRUCE J. BARRETT
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Bruce J. Barrett,
Its: President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each of the undersigned officers
and directors of SOMANETICS CORPORATION, a Michigan corporation (the "Company"),
hereby constitutes and appoints Bruce J. Barrett, Mary Ann Victor and William M.
Iacona, and each of them, the true and lawful attorneys-in-fact and agents of
the undersigned, each with the power of substitution for him in any and all
capacities, with full power and authority in said attorneys-in-fact and agents
and in any one or more of them, to sign, execute and affix his seal thereto and
file the proposed registration statement on Form S-8 to be filed by the Company
under the Securities Act of 1933, as amended, which registration statement
relates to the registration and issuance of the Company's Common Shares, par
value $0.01 a share, pursuant to the Somanetics Corporation 2005 Stock Incentive
Plan, and any of the documents relating to such registration statement; any and
all amendments to such registration statement, including any amendment thereto
changing the amount of securities for which registration is being sought, and
any post-effective amendment, with all exhibits and any and all documents
required to be filed with respect thereto with any regulatory authority;
granting unto said attorneys, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises in order to effectuate the same as fully to all intents
and purposes as he might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, and each of them, may
lawfully do or cause to be done by virtue hereof.
Page 6 of 10 Pages
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 date indicated.
Signature Title Date
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/s/ BRUCE J. BARRETT President and Chief Executive Officer May 26, 2005
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Bruce J. Barrett and a Director (Principal Executive Officer)
/s/ WILLIAM M. IACONA Vice President, Finance, Controller, May 26, 2005
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William M. Iacona and Treasurer (Principal Financial Officer
and Principal Accounting Officer)
/s/ DANIEL S. FOLLIS Director May 26, 2005
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Daniel S. Follis
/s/ DR. JAMES I. AUSMAN Director May 26, 2005
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James I. Ausman, M.D., Ph.D.
/s/ ROBERT R. HENRY Director May 26, 2005
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Robert R. Henry
Page 7 of 10 Pages
INDEX TO EXHIBITS
Exhibit
Number Description Page
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4.1 Restated Articles of Incorporation of Somanetics Corporation,
incorporated by reference to Exhibit 3(i) to our Quarterly
Report on Form 10-Q for the quarter ended February 28, 1998. N/A
4.2 Amended and Restated Bylaws of Somanetics Corporation,
incorporated by reference to Exhibit. 3(ii) to our Annual
Report on Form 10-K for the fiscal year ended November 30,
2003. N/A
4.3 Somanetics Corporation 2005 Stock Incentive Plan, incorporated
by reference to Exhibit 10.1 to our Current Report on Form
8-K, dated February 24, 2005. N/A
5.1 Opinion of Honigman Miller Schwartz and Cohn LLP. 9
23.1 Consent of Deloitte & Touche LLP. 10
23.2 Consent of Honigman Miller Schwartz and Cohn LLP (included in
the opinion filed as Exhibit 5.1 to this registration statement). 9
24.1 Powers of Attorney (included after the signature of the Registrant
contained on page 6 of this registration statement). 6
Page 8 of 10 Pages