As filed with the Securities and Exchange Commission on March 23, 2001
Registration No. 333-____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SUREBEAM CORPORATION
(Exact name of registrant as specified in its charter)
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Delaware 33-0921003
(State of Incorporation) (I.R.S. Employer Identification No.)
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3033 Science Park Road
San Diego, CA 92121-1199
(858) 550-6000
(Address of principal executive offices)
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2000 STOCK OPTION AND INCENTIVE PLAN
NONSTATUTORY STOCK OPTION PLAN
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plans)
Nicholas J. Costanza, Esq.
Senior Vice President, General Counsel
Surebeam Corporation
3033 Science Park Road
San Diego, CA 92121-1199
(858) 550-6000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Barbara L. Borden, Esq.
COOLEY GODWARD LLP
4365 Executive Drive, Suite 1100
San Diego, CA 92121
(858) 550-6000
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Offering Aggregate Amount of
to be Registered Amount to be Registered(1) Price per Share (2) Offering Price Registration Fee
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Class A Common Stock, par 10,395,937 shares $0.1438 - $10.00 $18,590,270 $4,648
value $.001 per share
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(1) This Registration Statement shall also cover any additional shares of
Class A Common Stock which shall become issuable under the 2000 Stock
Option and Incentive Plan and the Nonstatutory Stock Option Plan
by reason of any stock dividend, stock split, recapitalization or any
other similar transaction effected without the receipt of consideration
which results in an increase in the number of the Registrant's
outstanding shares of Class A Common Stock.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act of
1933, as amended. The offering price per share and aggregate offering
price are derived from (a) the actual exercise price for shares subject
to outstanding stock options previously granted under the Registrant's
2000 Stock Option and Incentive Plan or the Registrant's
Nonstatutory Stock Option Plan and (b) the average of the high and low
prices of Registrant's Class A Common Stock on March 19, 2001 as
reported on the Nasdaq National Market for the shares not yet subject
to currently outstanding options under the 2000 Stock Option and
Incentive Plan.
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TYPE OF SHARES NUMBER OF SHARES OFFERING PRICE PER AGGREGATE OFFERING
SHARE PRICE
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Class A Common Stock issuable pursuant to 377,074 $0.1438 - $10.00 $ 327,240
outstanding options under the 2000 Stock Option
and Incentive Plan
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Class A Common Stock issuable pursuant to 7,975,137 $0.1438 $ 1,146,825
outstanding options under the Nonstatutory
Stock Option Plan
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Class A Common Stock issuable pursuant to the 1,793,726 $8.375 $15,022,455
2000 Stock Option and Incentive Plan
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Class A Common Stock issuable pursuant to the 250,000 $8.375 $ 2,093,750
2000 Employee Stock Purchase Plan
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by SUREBEAM CORPORATION (the "Registrant"
or the "Company") with the Securities and Exchange Commission are incorporated
by reference into this Registration Statement:
The prospectus contained in the Form S-1 Registration Statement (No.
333-43672) filed by SureBeam Corporation with the Securities and Exchange
Commission (the "Commission") on August 14, 2000, as amended through the date
hereof (the "Form S-1").
The description of the Registrant's Class A Common Stock which is
contained in its Registration Statement on Form 8-A dated February 23, 2001,
including any amendment or reports filed for the purpose of updating such
description.
All reports and other documents filed by the Company pursuant to
Sections 12(g), 13(a), 13(c), 14 and 15(d) of the Exchange Act 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 herein and to be a part of this
registration statement from the date of the filing of such reports and
documents.
DESCRIPTION OF SECURITIES
Not applicable.
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity of the shares of Class A Common Stock offered hereby will
be passed upon for the Company by Cooley Godward LLP, San Diego, California.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's bylaws provide that it shall indemnify its directors and
executive officers and may indemnify its other officers, employees and other
agents to the fullest extent permitted by Delaware law, except with respect to
proceedings initiated by such persons that are not specifically exempted in the
Company's bylaws. The Company is also empowered under its bylaws to enter into
indemnification contracts with its directors and executive officers and to
purchase insurance on behalf of any person it is required or permitted to
indemnify. Pursuant to this provision, the Company has entered into
indemnification agreements with each of its directors and executive officers.
In addition, the Company's certificate of incorporation provides that
no director will be personally liable to the Company or its stockholders for
monetary damages for any breach of fiduciary duty as a director, except for
liability:
- for any breach of the director's duty of loyalty to the Company
or its stockholders;
- for acts or omission not in good faith of which involve
intentional misconduct or a knowing violation of law;
- under Section 174 of the Delaware General Corporation Law; or
- for any transaction from which the director derives an improper
personal benefit.
The Company's certificate of incorporation also provides that if the
Delaware General Corporation Law is amended to authorize corporate action
further eliminating or limiting the personal liability of directors, then the
liability of the Company's directors shall be eliminated or limited to the
fullest extent permitted by the Delaware General Corporation Law, as so amended.
The provision does not affect a director's responsibilities under any other law,
such as the federal securities laws or state or federal environmental laws.
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EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
EXHIBITS
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation
4.2* Bylaws
4.3* Form of Stock Certificate
4.4* 2000 Stock Option and Incentive Plan.
4.5* Form of Incentive and Nonstatutory Stock Option Agreements under
the 2000 Stock Option and Incentive Plan.
4.6* Nonstatutory Stock Option Plan and related offering documents.
4.7* 2000 Employee Stock Purchase Plan and related offering documents.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to this
Registration Statement
24.1 Power of Attorney is contained on the signature pages.
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* Filed as an exhibit to Registration Statement on Form S-1 (No.
333-43672) originally filed on August 14, 2000, as amended
through the date hereof, and incorporated herein by reference.
UNDERTAKINGS
1. The undersigned registrant hereby undertakes:
(a) 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 thereof) 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) (Section 230.424(b)
of this chapter) if, in the aggregate, the changes in volume and price represent
no more than a 20%
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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 the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(i) and (a)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the issuer pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference herein.
(b) 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 herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) 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.
2. 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 herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
3. 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 Securities and
Exchange 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.
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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 San Diego, County of San Diego, State of
California, on March 22, 2001.
SUREBEAM CORPORATION
By: /s/ Larry A. Oberkfell
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Larry A. Oberkfell
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Larry A. Oberkfell, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments, exhibits thereto and
other documents in connection therewith) 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
attorneys-in-fact and agents, 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
connection therewith, as fully to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or any of them, or their or his substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
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 dates indicated.
SIGNATURE TITLE DATE
/s/ Larry A. Oberkfell President, Chief Executive March 22, 2001
-------------------------------------------- Officer and Director
Larry A. Oberkfell (Principal Executive Officer)
/s/ Kevin K. Claudio Vice President and Chief March 22, 2001
-------------------------------------------- Financial Officer
Kevin K. Claudio (Principal Financial and
Accounting Officer)
/s/ Gene W. Ray Director March 22, 2001
--------------------------------------------
Gene W. Ray
/s/ Susan Golding Director March 22, 2001
--------------------------------------------
Susan Golding
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EXHIBIT INDEX
EXHIBIT
NUMBER
4.1* Amended and Restated Certificate of Incorporation
4.2* Bylaws
4.3* Form of Stock Certificate
4.4* 2000 Stock Option and Incentive Plan.
4.5* Form of Incentive and Nonstatutory Stock Option Agreements
under the 2000 Stock Option and Incentive Plan.
4.6* Nonstatutory Stock Option Plan and related offering
documents.
4.7* 2000 Employee Stock Purchase Plan and related offering documents.
5.1 Opinion of Cooley Godward LLP.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Cooley Godward LLP is contained in Exhibit 5.1 to
this Registration Statement
24.1 Power of Attorney is contained on the signature pages.
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* Filed as an exhibit to Registration Statement on Form S-1 (No.
333-43672) originally filed on August 14, 2000, as amended
through the date hereof, and incorporated herein by reference.