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As filed with the Securities and Exchange Commission on April 3, 1998
Registration No. 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
HEALTH SYSTEMS DESIGN CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 94-3235734
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1330 Broadway, Oakland, CA 94612
(Address of Principal Executive Offices)
HEALTH SYSTEMS DESIGN CORPORATION
1996 OMNIBUS EQUITY INCENTIVE PLAN
(Full Title of the Plan)
Russell J. Harrison
President and Chief Executive Officer
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
(510) 763-2629
(Name, address and telephone number of agent for service)
Copy to:
John F. Seegal, Esq.
Orrick, Herrington & Sutcliffe LLP
400 Sansome Street
San Francisco, CA 94111
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<CAPTION>
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share* Price* Fee*
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Common Stock, 500,000 shares $8.00 $4,000,000.00 $1,180.00
and Options to
Purchase Common
Stock
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* Estimated solely for the purpose of calculating the registration fee on the
basis of $8.00 per share, the average of the high and low prices for the
Common Stock on April 1, 1998 as reported by NASDAQ.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated by reference in this registration
statement: (i) the latest annual report of Health Systems Design Corporation
(the "Registrant") filed pursuant to Sections 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"); (ii) all
other reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual
report referred to in clause (i) above; and (iii) the description of the
Registrant's common stock set forth in the Registrant's Registration
Statement on Form 8-A relating thereto, including any amendment or report
filed for the purpose of updating such description. All documents filed by
the Registrant after the date of this registration statement pursuant to
Sections 13(a), 13(c), 14, and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment (that indicates all securities offered have
been sold or 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 date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES
Inapplicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Inapplicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article Sixth, Section 2 of the Registrant's Certificate of Incorporation
provides that directors of the Registrant shall not be personally liable to
the Registrant or its stockholders for monetary damages for breach of
fiduciary duty as a director, to the fullest extent permitted by the General
Corporation Law of the State of Delaware. Article Five, Section 1 of the
Registrant's By-Laws provides for indemnification of officers and directors
to the full extent and in the manner permitted by Delaware law. Section 145
of the Delaware General Corporation Law makes provision for such
indemnification in terms sufficiently broad to cover officers and directors
under certain circumstances for liabilities arising under the Securities Act
of 1933, as amended.
The Registrant has entered into indemnification agreements with each director
which provide indemnification under certain circumstances for acts and
omissions which may not be covered by any directors' and officers' liability
insurance.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Inapplicable.
ITEM 8. EXHIBITS
4.1 Health Systems Design Corporation 1996 Omnibus Equity Incentive Plan, as
amended (and incorporated by reference to Exhibit 10.3 to the
Registrant's Registration Statement on Form S-1, Commission File No.
333-00094, and to Exhibit 4.1 to the Registrant's Registration Statement
on Form S-8, Commission File No. 333-26725).
4.2 Form of Non-Qualified Stock Option Agreement (incorporated by reference
to Exhibit 4.2 to the Registrant's Registration Statement on Form S-8,
Commission File No. 333-26725).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit
5.1 to 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;
(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 or Form S-8 and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant to section 13
3
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or section 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.
(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 (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) 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.
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Signatures
THE REGISTRANT
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 Oakland, State of California on the 17 day of
March, 1998.
HEALTH SYSTEMS DESIGN CORPORATION
(Registrant)
/s/ Russell J. Harrison
- -----------------------------------
Russell J. Harrison
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.
Signature Title Date
Principal Executive Officer:
/s/ Russell J. Harrison
- ----------------------------
Russell J. Harrison President and March 17 , 1998
Chief Executive ----------
Officer
Principal Financial Officer
and Accounting Officer:
/s/ Steven J. Correia
- ----------------------------
Steven J. Correia Chief Financial March 17 , 1998
Officer ----------
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Directors:
/s/ Russell J. Harrison
- ----------------------------
Russell J. Harrison Director March 17 , 1998
----------
/s/ Richard C. Auger
- ----------------------------
Richard C. Auger Director March 17 , 1998
----------
/s/ Catherine C. Roth
- ----------------------------
Catherine C. Roth Director March 17 , 1998
----------
- ----------------------------
Christopher J. Herron Director , 1998
----------
- ----------------------------
J. Matthew Mackowski Director , 1998
----------
/s/ Arthur M. Southam
- ----------------------------
Arthur M. Southam Director March 18 , 1998
----------
A majority of the members of the Board of Directors.
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EXHIBIT INDEX
4.1 Health Systems Design Corporation 1996 Omnibus Equity Incentive Plan, as
amended (and incorporated by reference to Exhibit 10.3 to the Registrant's
Registration Statement on Form S-1, Commission File No. 333-00094, and to
Exhibit 4.1 to the Registrant's Registration Statement on Form S-8,
Commission File No. 333-26725).
4.2 Form of Non-Qualified Stock Option Agreement (incorporated by reference to
Exhibit 4.2 to the Registrant's Registration Statement on Form S-8,
Commission File No. 333-26725).
5.1 Opinion of Orrick, Herrington & Sutcliffe LLP.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Orrick, Herrington & Sutcliffe LLP is contained in Exhibit 5.1
to this Registration Statement.
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EXHIBIT 4.1
AMENDMENT NO. 2 TO THE
HEALTH SYSTEMS DESIGN CORPORATION
1996 OMNIBUS EQUITY INCENTIVE PLAN
HEALTH SYSTEMS DESIGN CORPORATION, having adopted the Health
Systems Design Corporation 1996 Omnibus Equity Incentive Plan, as amended by
Amendment No. 1 effective February 24, 1997 (the "Plan"), hereby amends the
Plan, effective as of February 9, 1998, by deleting the numeral 900,000 from
the first sentence of Section 4.1 and substituting the numeral 1,400,000
therefor.
IN WITNESS WHEREOF, Health Systems Design Corporation, by its duly
authorized officer, has executed this Amendment No. 2 on the date indicated
below.
HEALTH SYSTEMS DESIGN CORPORATION
Dated: March 17, 1998 By /S/ Russell J. Harrison
-------------- ------------------------------------
Title: President and Chief
Executive Officer
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EXHIBIT 5.1
March 26, 1998
Health Systems Design Corporation
1330 Broadway
Oakland, CA 94612
Re: Registration Statement on Form S-8/
Health Systems Design Corporation
1996 Omnibus Equity Incentive Plan, as Amended
Ladies and Gentlemen:
At your request, we are rendering this opinion in connection with
the proposed issuance pursuant to the Health Systems Design Corporation 1996
Omnibus Equity Incentive Plan, as amended (the "Plan"), of up to 500,000
additional shares of common stock, $0.001 par value ("Common Stock"), of
Health Systems Design Corporation, a Delaware corporation (the "Company").
We have examined instruments, documents, and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the following: (a) the
authenticity of original documents and the genuineness of all signatures; (b)
the conformity to the originals of all documents submitted to us as copies;
and (c) the truth, accuracy and completeness of the information,
representations and warranties contained in the records, documents,
instruments and certificates we have reviewed.
Based on such examination, we are of the opinion that the 500,000
additional shares of Common Stock to be issued by the Company pursuant to the
Plan are validly authorized shares of Common Stock and, when issued in
accordance with the provisions of the Plan, will be legally issued, fully
paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to
this Registration Statement on Form S-8 and to the use of our name wherever
it appears in said Registration Statement. In giving such consent, we do not
consider that we are "experts"
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Health Systems Design Corporation
March 26, 1998
Page 2
within the meaning of such term as used in the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange
Commission issued thereunder, with respect to any part of the Registration
Statement, including this opinion as an exhibit or otherwise.
Very truly yours,
/s/ Orrick, Herrington & Sutcliffe LLP
ORRICK, HERRINGTON & SUTCLIFFE LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our
reports included in or made a part of this Registration Statement on Form S-8.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
San Francisco, California
March 30, 1998
