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As filed with the Securities and Exchange Commission on September 29, 1997
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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NUTRITION MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1756256
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
9850 51st Avenue North
Suite 110
Minneapolis, Minnesota 55442
(Address of Principal Executive Offices) (Zip Code)
NUTRITION MEDICAL, INC.
1995 LONG-TERM INCENTIVE AND STOCK OPTION PLAN
1996 NON-EMPLOYEE DIRECTOR STOCK OPTION PLAN
(Full title of the plans)
William L. Rush, President Copy to: Kenneth L. Cutler, Esq.
Nutrition Medical, Inc. Dorsey & Whitney LLP
9850 51st Avenue North Pillsbury Center South
Suite 110 220 South Sixth Street
Minneapolis, Minnesota 55442 Minneapolis, Minnesota 55402-1498
(Name and address of agent for service)
(612) 551-9595
(Telephone number, including area code,
of agent for service)
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CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of each class Maximum Offering Maximum
of Securities to be Amount to be Price Aggregate Offering Amount of
registered registered per Share (1) Price (1) Registration Fee
Common Stock
($.01 par value) 900,000 Shares $2.5625 $2,306,250 $698.87
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended,
and based upon the average high and low prices for such Common Stock on
September 23, 1997, as reported on the Nasdaq SmallCap Market.
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PART II.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Nutrition Medical,
Inc. (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in this Registration Statement, as of their respective
dates:
(a) The Company's Annual Report on Form 10-KSB for the year
ended December 31, 1996;
(b)(1) The Company's Current Report on Form 8-K filed January
23, 1997;
(2) The Company's Amended Current Report on Form 8-K/A filed
March 31, 1997;
(3) The Company's Quarterly Report on Form 10-QSB for the
quarter ended March 31, 1997;
(4) The Company's Quarterly Report on Form 10-QSB for the
quarter ended June 30, 1997; and
(c) The description of the Company's Common Stock contained in
the Company's Registration Statement on Form 8-A dated March 14, 1997,
and any amendment or report filed to update such description filed
subsequent to the date of this Prospectus and prior to the termination
of the offering of the Common Stock offered hereby.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to
the date hereof and prior to the filing of a post-effective amendment 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
herein and to be a part hereof from the respective dates of filing of such
documents.
Item 4. DESCRIPTION OF SECURITIES.
Not applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
A partner and employee of Dorsey & Whitney LLP own a total of 47,037
shares of Common Stock.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Second Restated Articles of Incorporation limit the
liability of directors in their capacity as directors to the Company or its
shareholders to the full extent permitted by Minnesota law. Minnesota law
provides that, if so provided in a company's articles of incorporation, a
director shall not be liable to the company or its shareholders for monetary
damage for breach of fiduciary duty as a director, except (a) for any breach
of the director's duty of loyalty to the company or its shareholders, (b) for
acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (c) for dividends, stock repurchases and other
distributions made in violation of Minnesota law or for violations of
Minnesota securities laws, (d) for any
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transactions from which the director derived an improper personal benefit or (e)
for any act or omission occurring prior to the effective date of the provision
in the company's articles of incorporation limiting such liability. These
provisions do not affect the availability of equitable remedies, such as an
action to enjoin or rescind a transaction involving a breach of fiduciary duty,
although, as a practical matter, equitable relief may not be available. The
above provisions also do not limit liability of the directors for violations of,
or relieve them from the necessity of complying with, the federal securities
laws.
The Second Restated Bylaws of the Company provide for indemnification
of the officers and directors of the Company to the extent permitted by Section
302A.521, subd. 2, of the Minnesota Statutes, as now enacted or hereafter
amended, which requires the Company to indemnify a person made or threatened to
be made a party to a proceeding by reason of the former or present official
capacity of the person with respect to the Company, against judgments,
penalties, fines (including, without limitation, excise taxes assessed against
the person with respect to an employee benefit plan), settlements, and
reasonable expenses, including attorneys' fees and disbursements, incurred by
the person in connection with the proceeding, if, with respect to the acts or
omissions of the person complained of in the proceeding, the person (a)has not
been indemnified by another organization or employee benefit plan for the same
judgments, penalties or fines; (b)acted in good faith; (c)received no improper
personal benefit, and statutory procedure has been followed in the case of any
conflict of interest by a director; (d)in the case of a criminal proceeding, had
no reasonable cause to believe the conduct was unlawful; and (e)in the case of
acts or omissions occurring in the person's performance in the official capacity
of director or, for a person not a director, in the official capacity of
officer, board committee member or employee, reasonably believed that the
conduct was in the best interests of the Company, or, in the case of performance
by a director, officer or employee of the Company involving service as a
director, officer, partner, trustee, employee or agent of another organization
or employee benefit plan, reasonably believed that the conduct was not opposed
to the best interests of the Company. In addition, Section 302A.521, subd. 3,
requires payment by the Company, upon written request, of reasonable expenses in
advance of final disposition of the proceeding in certain instances. A decision
as to required indemnification is made by a disinterested majority of the Board
of Directors present at a meeting at which a disinterested quorum is present, or
by a designated committee of the Board, by special legal counsel, by the
shareholders, or by a court.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
Item 8. EXHIBITS.
4.1 Second Restated Articles of Incorporation of the Company
(incorporated by reference to Exhibit 3.1 to the Company's
Quarterly Report on Form 10-QSB for the quarter ended
September 30, 1996 (File No. 333-9999)).
4.2 Second Restated Bylaws of the Company (incorporated by
reference to Exhibit 3.2 to the Company's Quarterly Report
on Form 10-QSB for the quarter ended September 30, 1996 (File
No. 333-9999)).
4.3 Specimen certificate representing the Common Stock of the
Company (incorporated by reference to Exhibit 4.1 to the
Company's Registration Statement on Form SB-2 (File No.
333-9999)).
5.1 Opinion of Dorsey & Whitney LLP.
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23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1
above).
23.2 Consent of Ernst & Young LLP.
Item 9. UNDERTAKINGS.
A. POST-EFFECTIVE AMENDMENTS.
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:
(a) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(b) To reflect in the prospectus any facts or events which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(c) 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 subparagraphs (a) and (b) above will not apply if the
information required to be included in a post-effective amendment by those
subparagraphs 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 this
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.
B. SUBSEQUENT DOCUMENTS INCORPORATED BY REFERENCE.
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.
C. CLAIMS FOR INDEMNIFICATION.
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
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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 theopinion 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.
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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 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 Minneapolis, State of Minnesota, on this 29th day of
September, 1997.
NUTRITION MEDICAL, INC.
By /s/ William L. Rush
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William L. Rush
Chairman of the Board, President and
Chief Executive Officer
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.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ William L. Rush Chairman of the Board of September 29, 1997
- ------------------------------ Directors, President and Chief
William L. Rush Executive Officer
(principal executive officer)
/s/ Richard J. Hegstrand Chief Financial Officer September 29, 1997
- ------------------------------ (principal financial and
Richard J. Hegstrand accounting officer)
Director
- ------------------------------
Kenneth L. Evenstad
/s/ George E. Kline Director September 29, 1997
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George E. Kline
/s/ Lawrence A. Lehmkuhl Director September 29, 1997
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Lawrence A. Lehmkuhl
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EXHIBIT INDEX
Exhibit
No. Name
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5.1 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5.1 above).
23.2 Consent of Ernst & Young LLP.
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Exhibit 5.1
[Dorsey & Whitney LLP Letterhead]
Nutrition Medical, Inc.
9850 51st Avenue North
Suite 110
Minneapolis, Minnesota 55442
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Nutrition Medical, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 (the "Registration Statement") relating to the sale by the Company from time
to time of up to 900,000 shares of Common Stock, $.01 par value, of the Company
(the "Shares"), issuable pursuant to the Company's 1995 Long-Term Incentive and
Stock Option Plan and 1996 Non-Employee Director Stock Option Plan
(collectively, the "Plans").
We have examined such documents and have reviewed such questions of
law as we have considered necessary and appropriate for the purposes of the
opinions set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have
been duly authorized and, upon issuance, delivery and payment therefor in
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Dated:September 29, 1997
Very truly yours,
/s/ Dorsey & Whitney LLP
KLC
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EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1995 Long-Term Incentive and Stock Option Plan and
1996 Non-Employee Director Stock Option Plan of Nutrition Medical, Inc. for the
registration of 900,000 shares of common stock of our report dated January 22,
1997, with respect to the financial statements of Nutrition Medical, Inc.
included in the Annual Report on Form 10-KSB for the year ended December 31,
1996.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
September 23, 1997
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