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As Filed with the Securities and Exchange Commission on June 7, 1995.
Registration No. 33-____________________
==============================================================================
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)
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<S> <C>
Delaware 95-2544661
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
</TABLE>
____________________________
970 West 190th Street, Suite 400
Torrance, CA 90502
(Address of Principal Executive Offices)
____________________________
Nonqualified Stock Option Plan-1986
(Full Title of the Plan)
____________________________
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
====================================================================================================================
Proposed Proposed
Amount Maximum Maximum
Title of to be Offering Price Aggregate Amount of
Securities to be Registered Registered Per Share(1) Offering Price Registration Fee
____________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock, par value
$.001 per share . . . . . . . . 2,000,000 $6.875 $13,750,000 $4,741
====================================================================================================================
</TABLE>
(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 June 2, 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
Sections 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, fines, 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 attorneys' 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 attorneys' fees), judgments, fines 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 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 determines 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 advance 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.
Pursuant to Indemnification Agreements which the Registrant
has entered into with the directors and certain officers of the Registrant, the
Registrant has agreed to pay on behalf of such directors and officers, any
amount which such directors and officers become legally obligated to pay by
reason of the fact that they are or were directors or officers of the
Registrant or of another entity at the request of the Registrant. The
obligations of the Registrant to make such payments are subject to certain
exceptions set forth in the Indemnification Agreements and to prohibitions
against such payments under applicable law.
The Registrant also 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
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collectively, in the discharge of their duties in their capacity as directors
and officers of the Registrant.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended, ("1933 Act") may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been informed that, in the opinion of the
Commission, such indemnification is against public policy as expressed in the
1933 Act and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- ---------------------------------------------
Not applicable.
ITEM 8. EXHIBITS.
- ------------------
3.1 Certificate of Incorporation *
3.2 Bylaws *
5.1 Opinion of Hewitt & McGuire
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hewitt & McGuire (included in Exhibit 5.1)
24.1 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.
- ----------------------
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;
(ii) to reflect in the prospectus any
facts or events arising after the
effective date of the registration
statement (or the most
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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 (1)(i) and (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 or Section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(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.
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 to be the initial bona fide offering thereof.
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 5th day
of June, 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 June 5, 1995.
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<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Sam Westover President, Chief Executive June 5, 1995
- ------------------------------------- Officer and Director
Sam Westover (principal executive officer)
/s/ J. Roberts Fosberg Chairman of the Board June 5, 1995
- ------------------------------------- and Director
J. Roberts Fosberg
/s/ Kenneth J. Kay Senior Vice President, Finance June 5, 1995
- ------------------------------------- and Administration
Kenneth J. Kay (principal financial and
principal accounting officer)
/s/ John E. Flood, Jr. Vice Chairman of the Board June 5, 1995
- -------------------------------------
John E. Flood, Jr.
/s/ Ronald P. Arrington Director June 5, 1995
- -------------------------------------
Ronald P. Arrington
/s/ James F. Doherty Director June 5, 1995
- -------------------------------------
James F. Doherty
Director June __, 1995
- -------------------------------------
Frederick M. Myers
/s/ Jon C. Thorson, M.D. Director June 5, 1995
- -------------------------------------
Jon C. Thorson, M.D.
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EXHIBIT INDEX
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<CAPTION>
Sequentially
Exhibit Number Exhibit Numbered Page
- -------------- ------- -------------
<S> <C> <C>
3.1 Certificate of Incorporation of the Registrant Incorporated by Reference
3.2 Bylaws of the Registrant Incorporated by Reference
5.1 Opinion of Hewitt & McGuire
23.1 Consent of Ernst & Young LLP
23.2 Consent of Hewitt & McGuire (included in Exhibit 5.1)
24.1 Power of Attorney (contained on Signature Page)
</TABLE>
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HEWITT & MCGUIRE
ATTORNEYS AT LAW
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<S> <C> <C>
DEAN DUNN-RANKIN 19900 MACARTHUR BOULEVARD, SUITE 1050 JAY F. PALCHIKOFF
CHARLES S. EXON IRVINE, CALIFORNIA 92715 PAUL A. ROWE
ANDREW K. HARTZELL (714) 798-0500 (714) 798-0511 (FAX) WILLIAM L. TWOMEY
HUGH HEWITT JOHN P. YEAGER
MARK R. MCGUIRE
</TABLE>
EXHIBIT 5.1
June 6, 1995
Systemed Inc.
970 West 190th Street
Suite 400
Torrance, CA 90502
Re: Form S-8 Registration Statement
-------------------------------
Gentlemen:
We have acted as your legal counsel 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 1,000,000 shares of common
stock, $.001 par value, ("Common Stock") of Systemed Inc., a Delaware
corporation, ("Company") issuable upon exercise of the stock options granted
pursuant to the Company's 1993 Employee Stock Option Plan.
As such legal counsel, we have made such legal and factual
inquiries as we deemed necessary under the circumstances for the purpose of
rendering this opinion. In reliance thereon, we are of the opinion that the
1,000,000 shares of Common Stock of the Company 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
plan and related stock option agreements, be duly authorized and validly
issued, fully paid and non-assessable.
We have 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 plan will be
negotiable and secured by collateral constituting lawful consideration under
Section 152 of the Delaware General Corporation Law.
<PAGE> 2
SysteMed Inc.
June 5, 1995
Page 2
We hereby consent to the filing of this opinion as an exhibit
to the aforementioned Registration Statement.
Sincerely,
HEWITT & MCGUIRE
PAR/WLT/mer
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EXHIBIT 23.1
------------
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Nonqualified Stock Option Plan--1986 of Systemed
Inc. and in the related Prospectus 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
June 5, 1995
