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As filed with the Securities and Exchange Commission on September 1, 1995
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYSTEMED INC.
(Exact Name of Registrant as Specified in Charter)
<TABLE>
<S> <C>
Delaware 95-2544661
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
</TABLE>
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970 WEST 190TH STREET, SUITE 400
TORRANCE, CA 90502
(Address of Principal Executive Office)
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1994 Stock Option Agreement (Thorson)
1994 Stock Option Agreement (Arrington)
1994 Stock Option Agreement (Arrington)
1994 Stock Option Agreement (Flood)
1994 Stock Option Agreement (Flood)
1994 Stock Option Agreement (Fosberg)
1994 Stock Option Agreement (Fosberg)
1994 Stock Option Agreement (Myers)
1994 Stock Option Agreement (Myers)
1994 Incentive Stock Option Agreement (Archbold)
1994 Incentive Stock Option Agreement (Archbold)
1994 Stock Option Agreement (Harkavy)
1994 Stock Option Agreement (Harkavy)
1993 Stock Option Agreement (Flood)
(Full Title of the Plans)
----------------
KENNETH J. KAY
SENIOR VICE PRESIDENT,
FINANCE AND ADMINISTRATION
SYSTEMED INC.
970 WEST 190TH STREET, SUITE 400
TORRANCE, CA 90502
(310) 538-5300
(Name, Address and Telephone Number,
Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Share(1) Offering Price Fee
---------------------------- ---------- ------------ -------------- ------------
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share . . . . . . . . . . . . . . . 580,000 shares $6.375 $3,697,500 $1,275
</TABLE>
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(1) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) and based on the average of the high and low sales prices
of the Common Stock of Systemed Inc. on August 29, 1995.
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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 previously filed by
Systemed Inc. ("Registrant") with the Securities and Exchange Commission, are
hereby incorporated herein by reference:
a. the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 ("Annual Report")
filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended
("Exchange Act");
b. all other reports filed pursuant to Section 13(a) or
15(d) of the Exchange Act since the end of the fiscal
year covered by the Annual Report referred to in (a)
above; and
c. the description of the Registrant's Common Stock
which is contained in a registration statement filed
by the Registrant under Section 12 of the Exchange
Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to
Section 13(a) and (c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment which indicates that all securities offered
hereunder have been sold or which deregisters all such 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; provided, however, notwithstanding anything to the contrary, the
Registrant's Compensation Report and the Performance Graph included in the
Registrant's Proxy Statements shall not be deemed to be incorporated by
reference into this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Registrant's Bylaws provide for indemnification of
directors, officers, employees and other agents ("Agents") of the Registrant
against expenses, judgments, files and settlements and other amounts actually
and reasonably incurred in connection with any proceeding arising by reason of
the fact that such person is or was an Agent of the Registrant to the full
extent permitted by the Delaware General Corporation Law.
The Delaware General Corporation Law, as presently in effect,
provides that an Agent of a corporation (i) must be indemnified by the
corporation for all expenses incurred by him (including attorney's fees) when
he is successful on the merits or otherwise in defense of any proceeding
brought by reason of the fact that he is or was an Agent of the corporation
("Proceeding"), (ii) may be indemnified by the corporation against expenses
(including attorney's fees), judgments, files and amounts paid in settlement of
any Proceeding (other than a Proceeding by or in the right of the corporation)
even if he is not successful on the merits if he acted in good faith and in a
manner he is reasonably believed to be in or not opposed to the best interests
of the corporation (and, in the case of a criminal proceeding, had no
reasonable cause to believe his conduct was unlawful), and (iii) may be
indemnified by the corporation for expenses (including attorneys' fees)
incurred by him in the defense of a Proceeding brought by or in the right of
the corporation even if he is not successful on the merits, if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the
best interests of the corporation, provided that no indemnification may be made
under the circumstances described in clause (iii) if the Agent is adjudged
liable to the corporation, unless a court determined that, despite the
adjudication of liability but in view of all of the circumstances, he is fairly
and reasonably entitled to indemnification for the expenses which the court
shall deem proper. The indemnification described in clauses (ii) and (iii)
above (unless ordered by a court) may be made only as authorized in the
specific case upon a determination by (i) a majority of a quorum of
disinterested directors, (ii) independent legal counsel in a written opinion,
or (iii) the stockholders, that indemnification is proper in the circumstances
because the applicable standard of conduct has been met. Expenses incurred by
an officer or director in defending a Proceeding may be advanced by the
corporation prior to the final disposition of the Proceeding upon receipt of an
undertaking by or on behalf of the person to repay the advanced amounts if it
is ultimately determined that he or she is not entitled to be indemnified by
the corporation. Expenses incurred by other employees and agents may be
advanced by the corporation upon terms and conditions deemed appropriate by the
board of directors.
The Registrant's Certificate of Incorporation includes a
provision eliminating, to the fullest extent permitted by Delaware law, the
personal liability of directors for monetary damages for breaches of fiduciary
duty.
The Registrant maintains liability insurance for its directors
and officers covering, subject to certain exceptions, any actual or alleged
negligent act, error, omission, misstatement, misleading statement, neglect or
breach of duty by such directors or officers, individually or collectively, in
the discharge of their duties in their capacity as directors and officers of
the Registrant.
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ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Certificate of Incorporation*
4.2 Bylaws*
5. Opinion of Munger, Tolles & Olson
23.1 Consent of Ernst & Young LLP
23.2 Consent of Munger, Tolles & Olson (included in
Exhibit 5)
24. Power of Attorney (contained on Signature Page)
____________________
* Filed as Exhibits 4.1 and 4.2 to the Registrant's Registration Statement on
Form S-8 (File No. 33-77432), such previously filed exhibits being incorporated
herein by this reference.
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)
or the Securities Act;
(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.
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(2) That, for the purpose of determining any
liability under the Securities Act, each 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 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, each filing
of the Registrant's annual report pursuant to Section 13(a) or 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 therein, and the offering of such securities at that time
shall be deemed o be the initial bona fide offering thereof.
(h) 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 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, officers
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
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 Torrance, State of California on this 31st day
of August, 1995.
SYSTEMED INC.
By: /s/ Sam Westover
Sam Westover
President and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below authorizes Sam
Westover and Kenneth J. Kay, and either of them, with full power of
substitution and resubstitution, his or her true and lawful attorneys-in-fact,
for him or her in any and all capacities, to sign any amendments (including
post-effective amendments) to the Registration Statement 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 persons in the
capacities indicated as of date indicated.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/Sam Westover President, Chief Executive August 31, 1995
Sam Westover Officer and Director (principal
executive officer)
/s/J. Roberts Fosberg Chairman of the Board and August 28, 1995
J. Roberts Fosberg Director
/s/Kenneth J. Kay Senior Vice President, Finance August 31, 1995
Kenneth J. Kay and Administration and Chief
Financial Officer (principal
financial and principal
accounting officer)
/s/John E. Flood, Jr. Vice Chairman of the Board August 26, 1995
John E. Flood, Jr.
/s/Ronald P. Arrington Director August 31, 1995
Ronald P. Arrington
/s/James F. Doherty
James F. Doherty Director August 31, 1995
/s/Frederick M. Myers Director August 31, 1995
Frederick M. Myers
/s/Jon C. Thorson, M.D. Director August 31, 1995
Jon C. Thorson, M.D.
/s/Craig L. McKnight Director August 31, 1995
Craig L. McKnight
</TABLE>
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EXHIBIT 5
MUNGER, TOLLES & OLSON
355 S. Grand Avenue, 35th Fl.
Los Angeles, California 90071-1560
September 1, 1995
Systemed Inc.
Suite 400
970 West 190th Street
Torrance, CA 90502
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as legal counsel to Systemed Inc., a Delaware
corporation (the "Company"), in the preparation of the Form S-8 Registration
Statement ("Registration Statement") which will be filed with the Securities
and Exchange Commission in connection with the registration under the
Securities Act of 1933, as amended, of 580,000 shares of common stock, $.001
par value ("Shares"), of the Company, issuable upon the exercise of the stock
options granted pursuant to the stock option agreements described in the
Registration Statement.
As such legal counsel, we are familiar with the proceedings
taken and to be taken by the Company in connection with the authorization and
issuance of the Shares. In addition, we have made such legal and factual
examinations and inquiries including an examination of originals (or copies
certified or otherwise identified to our satisfaction as being true
reproductions of originals) of such documents, corporate records and other
representations and assurances as we deemed necessary under the circumstances
for the purpose of rendering this opinion. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the legal capacity of natural persons executing
such documents and the authenticity and conformity to original documents to
documents submitted to us as copies. We have also assumed for purposes of this
opinion that any promissory note given by an optionee as full or partial
payment of the exercise price of an option issued under the Company's stock
option agreements will constitute lawful consideration under Section 152 of the
Delaware General Corporation Law.
In reliance of the foregoing, we are of the opinion that the
Shares being registered under the aforementioned Registration Statement will,
when issued in full pursuant to the options granted and exercised in accordance
with the terms of the stock option agreements, be validly issued, fully paid
and nonassessable.
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Our opinion is limited to the effect on the subject
transactions of the federal law of the United States and the law of the State
of Delaware. We do not express any opinion herein concerning the effect of any
other law.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
MUNGER, TOLLES & OLSON
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the
Registration Statement of Systemed Inc. (Form S-8) pertaining to Non-Plan
Stock Option Agreements issued in December 1993 and February 1994 of our
report dated February 17, 1995, except for Note 10, the date for which is
March 29, 1995 with respect to the consolidated financial statements and
schedules of Systemed Inc. included in its Annual Report (Form 10-K)
for the year ended December 31, 1994, filed with the Securities and Exchange
Commission.
ERNST & YOUNG LLP
Orange County, California
August 30, 1995
