As filed with the Securities and Exchange Commission on September 20, 2002.
Registration No.333-
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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icad, inc.
(Exact name of registrant as specified in its charter)
Delaware 02-0377419
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
6405 Congress Avenue, Boca Raton, Florida 33487
(Address of principal executive offices) (Zip Code)
2001 Stock Option Plan; 2002 Stock Option Plan; Intelligent Systems
Software, Inc. 2001 Stock Option Plan; Non-Plan Stock Options
(Full title of the plan)
W. Kip Speyer, Chief Executive Officer
icad, inc.
6405 Congress Avenue
Boca Raton, Florida 33487
(Name and address of agent for service)
(561) 994-4404
(Telephone number, including area code, of agent for service)
Copy to:
Robert J. Mittman, Esq.
Ethan Seer, Esq.
Blank Rome Tenzer Greenblatt LLP
405 Lexington Avenue
New York, New York 10174
CALCULATION OF REGISTRATION FEE
Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Amount to be Aggregate Offering Aggregate Offering Registration
Registered Registered (1) Price Per Share(2) Price (2) Fee
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Common Stock, par value
$.01 per share 3,390,000 shares $2.081 $7,054,590 $649.02
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this registration statement also registers an indeterminate number of
shares of common stock which may be issued pursuant to the anti-dilution
provisions of (i) the registrant's 2001 Stock Option Plan (the "2001
Plan"), (ii) the registrant's 2002 Stock Option Plan (the "2002 Plan");
(iii) the Intelligent Systems Software, Inc. ("ISSI") 2001 Stock Option
Plan which was assumed by the registrant in connection with the merger of
ISSI with and into the registrant (the "Merger"), which was effected on
June 28, 2002 (the "Assumed ISSI Plan"), the result of which, among other
things, was that the options issued under the Assumed ISSI Plan are no
longer exercisable for shares of ISSI common stock, but, instead, are
exercisable for shares of icad, inc. common stock based upon the exchange
ratio in the Merger of 1.25 shares of icad, inc. common stock for 1 share
of ISSI common stock; or (iv) the Non-Plan stock options granted to
certain officers, directors and employees of the registrant.
(2) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933 based upon (i) as to
the outstanding options to purchase 1,825,000 shares of which 135,000
options have been issued under the 2001 Plan, 400,000 options have been
issued under the Assumed ISSI Plan (which options are exercisable for
500,000 shares of icad, inc. common stock pursuant to the terms of the
Merger) and 1,190,000 options which are Non-Plan stock options granted to
certain officers, directors and employees of the registrant, the exercise
prices of such options and (ii) as to the 1,065,000 shares of common stock
that may be issued upon the exercise of options available for grant under
the 2001 Plan, and the 500,000 shares of common stock that may be issued
under the 2002 Plan, upon the average of the high and low sales prices of
the common stock as reported on Nasdaq on September 17, 2002.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 and the Note to Part I of Form S-8.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously filed by the registrant with the
Securities and Exchange Commission (the "Commission") are incorporated by
reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended December 31,
2001.
2. Quarterly Report on Form 10-Q for the quarter ended March 31, 2002.
3. Quarterly Report on Form 10-Q for the quarter ended June 30, 2002.
4. Current Report on Form 8-K for the event dated June 5, 2002.
5. Current Report on Form 8-K for the event dated June 28, 2002.
6. The description of the registrant's common stock contained in its
Registration Statement on Form 8-A dated March 13, 1985 together
with any amendments thereto.
7. All documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, prior to 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 a part hereof from the respective date of filing of such
documents. Any statement contained in a document incorporated by
reference herein is modified or superseded for all purposes to the
extent that a statement contained in this Registration Statement or
in any other subsequently filed document which is incorporated by
reference modifies or replaces such statement.
Any reference herein shall 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 documents which also is incorporated
or deemed to be incorporated by reference herein 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.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable
Item 6. Indemnification of Directors and Officers.
Section 102 of the Delaware General Corporation Law ("DGCL"), as amended,
allows a corporation to eliminate the personal liability of directors of a
corporation to the corporation or its stockholders for monetary damages for a
breach of fiduciary duty as a director, except where the director breached his
duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a
stock repurchase in violation of Delaware law or obtained an improper personal
benefit.
Section 145 of the DGCL provides, among other things, that a corporation
may indemnify any person who was or is a party or is threatened to be made a
party to any threatened, pending or completed action, suit or proceeding (other
than an action by or in the right of the corporation) by reason of the fact that
the person is or was a director, officer, agent or employee of the corporation
or is or was serving at the corporation's request as a director, officer, agent,
or employee of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgment, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with such action, suit or proceeding. The power to indemnify applies
(a) if such person is successful on the merits or otherwise in defense of any
action, suit or proceeding or (b) if such person acted in good faith and in a
manner he reasonably believed to be in the best interest, or not opposed to the
best interest, of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
power to indemnify applies to actions brought by or in the right of the
corporation as well, but only to the extent of defense expenses (including
attorneys' fees but excluding amounts paid in settlement) actually and
reasonably incurred and not to any satisfaction of judgment or settlement of the
claim itself, and with the further limitation that in such actions no
indemnification shall be made in the event of any adjudication of negligence or
misconduct in the performance of duties to the corporation, unless the court
believes that in light of all the circumstances indemnification should apply.
Section 174 of the DGCL provides, among other things, that a director, who
willfully or negligently approves of an unlawful payment of dividends or an
unlawful stock purchase or redemption, may be held liable for such actions. A
director who was either absent when the unlawful actions were approved or
dissented at the time, may avoid liability by causing his or her dissent to such
actions to be entered in the books containing the minutes of the meetings of the
board of directors at the time such action occurred or immediately after such
absent director receives notice of the unlawful acts.
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The registrant's certificate of incorporation, as amended, eliminates, to
the fullest extent permitted by the DGCL, a director's personal liability to the
registrant or its stockholders for monetary damages for breach of fiduciary duty
as a director.
In addition, the registrant's by-laws provide that the registrant will
indemnify its officers and directors to the full extent permitted by the laws of
the State of Delaware.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit No. Description
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5 Opinion of Blank Rome Tenzer Greenblatt LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Grant Thornton LLP
23.3 Consent of Blank Rome Tenzer Greenblatt LLP (included in
Exhibit 5)
24.1 Power of Attorney (included on the Signature Page of this
Registration Statement)
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:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the registration statement any facts or events
arising after the effective date of the prospectus (or the most
recent post-effective amendments thereto) 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 and 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 prices
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represent no more than 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 (1)(i) and (1)(ii) do not apply if the
information required to be filed with 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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(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 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.
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 (and where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
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 such 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, 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 Boca Raton, Florida, on this 19th day of September 2002.
icad, inc.
By: /s/ W. Kip Speyer
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W. Kip Speyer, Chief Executive Officer
Each person whose signature appears below authorizes each of W. Kip Speyer
and W. Scott Parr, or either of them acting individually, as his true and lawful
attorney-in-fact, each with full power of substitution, to sign the Registration
Statement on Form S-8 of icad, inc., including any and all pre-effective and
post-effective amendments, in the name and on behalf of each such person,
individually and in each capacity stated below, and to file the same, with
exhibits thereto and other documents in connection therewith with the Securities
and Exchange Commission.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacities
and on the dates indicated.
Signature Title Date
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/s/ W. Kip Speyer Chief Executive Officer and Director September 19, 2002
--------------------------- (Principal Executive Officer)
W. Kip Speyer
/s/ W. Scott Parr President, Chief Operating Officer and September 19, 2002
--------------------------- Director
W. Scott Parr
/s/ Annette Heroux Chief Financial Officer (Principal September 19, 2002
--------------------------- Accounting Officer)
Annette Heroux
/s/ Gregory J. Stepic Treasurer and Director September 19, 2002
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Gregory J. Stepic
/s/ Robert Howard Chairman of the Board and Director September 19, 2002
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Robert Howard
/s/ Kevin S. Woods Director September 19, 2002
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Dr. Kevin S. Woods
/s/ Brett Smith Director September 19, 2002
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Brett Smith
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/s/ Maha Y. Sallam Director September 19, 2002
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Dr. Maha Y. Sallam
/s/ James Harlan Director September 19, 2002
---------------------------
James Harlan
/s/ Elliot Sussman Director September 19, 2002
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Dr. Elliot Sussman
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Exhibit Index
Exhibit No. Description
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5 Opinion of Blank Rome Tenzer Greenblatt LLP
23.1 Consent of BDO Seidman, LLP
23.2 Consent of Grant Thornton LLP
23.3 Consent of Tenzer Greenblatt LLP (included in Exhibit 5)
24.1 Power of Attorney (included on Signature Page of the
Registration Statement)