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As filed with the Securities and Exchange Commission on June 9, 2000.
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
CARDIODYNAMICS INTERNATIONAL CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA
(State or other jurisdiction of incorporation or organization)
95-3533362
(I.R.S. Employer Identification No.)
6175 NANCY RIDGE DRIVE, SUITE 300
SAN DIEGO, CALIFORNIA 92121
(Address of Principal Executive Offices)
1995 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plan)
MICHAEL K. PERRY, CHIEF EXECUTIVE OFFICER
CARDIODYNAMICS INTERNATIONAL CORPORATION
6175 NANCY RIDGE DRIVE
SAN DIEGO, CA 92101
(858) 535-0202
(Name, address and telephone number, including area code, of agent for service)
copy to:
David R. Snyder
Pillsbury Madison & Sutro LLP
101 West Broadway, Suite 1800
San Diego, California 92101
(619) 234-5000
CALCULATION OF REGISTRATION FEE
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<CAPTION>
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE MAXIMUM AGGREGATE REGISTRATION
BE REGISTERED REGISTERED PER SHARE(1) OFFERING PRICE(1) FEE
<S> <C> <C> <C> <C>
Common Stock 1,471,000 shares $5.50 $8,090,500 $2,135.89
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(1) Estimated solely for the purpose of calculating the registration fee on the
basis of the average of the high and low prices as reported on the Nasdaq
SmallCap Market on May 26, 2000.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1: PLAN INFORMATION*
ITEM 2: REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from the Registration Statement in accordance
with Rule 428 under the Securities Act of 1933, as amended (the
"Securities Act"), and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Registrant with the
Securities and Exchange Commission (the "SEC"), are incorporated by reference
herein:
(a) The Registrant's Annual Report on Form 10-KSB (File No. 0-11868)
for the fiscal year ended November 30, 1999;
(b) The Registrant's Quarterly Report on Form 10-QSB
(File No. 0-11868) for the quarter ended February 29, 2000.
Until such time that a post-effective amendment to this Registration
Statement has been filed which indicates that all securities issued hereby have
been sold or which deregisters all securities remaining unsold at the time of
such amendment, all documents subsequently filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act 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
Not applicable.
ITEM 5: INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS
California Corporations Code Section 317 ("Section 317") is the governing
statute concerning indemnification of officers and directors and, in effect,
provides that a director or officer may be indemnified against expenses, fines,
judgments, settlements, and other amounts actually and reasonably incurred by
him or her in connection with suits and proceedings brought or threatened to be
brought against him or her by reason of his or her position, if he or she acted
in good faith and in a manner he or she reasonably believed to be in the best
interests of the Registrant and, in the case of criminal proceedings, had no
reasonable cause to believe that his or her conduct was unlawful.
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With respect to a suit by or on behalf of the Registrant, a director or
officer may be indemnified against expenses actually and reasonably incurred by
him or her if he or she acted in good faith in a manner he or she reasonably
believed to be in the best interests of the Registrant. No indemnification shall
be made of amounts paid in connection with the defense or settlement of a
threatened or pending suit as to matters which such director or officer shall
have been adjudged liable to the Registrant, unless and only to the extent that
the court, upon application, determines that despite the adjudication of
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses and then only to
the extent that the court shall determine. No indemnification shall be made of
amounts paid in connection with a settling or otherwise disposing of a pending
action or defending a pending action which is settled or is otherwise disposed
of without court approval. To the extent that a director or officer has been
successful on the merits or otherwise in the suit or any claim therein, he or
she shall be indemnified against expenses actually and reasonably incurred by
him or her. The indemnification provided by Section 317 is not exclusive of any
other rights to which such director or officer seeking indemnification may be
entitled under any bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, with respect to action in his or her official capacity
and with respect to action in another capacity while holding such office.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8: EXHIBITS
See Exhibit Index.
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
statements (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. 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) if, in the
aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
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(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 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 Securities Exchange Act of 1934
that are incorporated by reference in the Registration
Statement.
(2) 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 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 therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Exchange Act; and, where
interim financial information required to be presented by Article 3 of
Regulation S-X is not set forth in the prospectus, to deliver, or cause to be
delivered to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
(d) 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 SEC 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 of 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, we certify that
we have reasonable grounds to believe that we meet all of the requirements for
filing on Form S-8 and have duly caused this registration statement to be signed
on our behalf by the undersigned, thereunto duly authorized in the City of San
Diego, State of California on June 9, 2000.
CardioDynamics International Corporation
By: /s/ Michael K. Perry
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Michael K. Perry
Chief Executive Officer
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael K. Perry and Stephen P. Loomis
and each of them, as his or her true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement
on Form S-8, 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 or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-facts and agents, or either of them, or
their or his substitute or substitutes, 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:
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<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ Michael K. Perry Chief Executive Officer, and Principal June 9, 2000
----------------------------- Executive Officer
Michael K. Perry
/s/ Stephen P. Loomis Vice President, Finance, Chief Financial June 9, 2000
----------------------------- Officer (Principal Financial and
Stephen P. Loomis Accounting Officer)
/s/ Cam L. Garner Director June 9, 2000
-----------------------------
Cam L. Garner
/s/ James C. Gilstrap Director June 9, 2000
-----------------------------
James C. Gilstrap
/s/ Richard O. Martin, Ph.D. Director June 9, 2000
-----------------------------
Richard O. Martin, Ph.D.
/s/ Allen E. Paulson Director June 9, 2000
-----------------------------
Allen E. Paulson
/s/ Connie R. Curran, RN Director June 9, 2000
-----------------------------
Connie R. Curran, RN
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NUMBER DESCRIPTION
<S> <C>
5.1 Opinion of Pillsbury, Madison & Sutro LLP.
10.1 1995 Stock Option/Stock Issuance Plan, as amended (incorporated by
reference to the Registrant's Quarterly Report on Form 10-QSB for the
period ended August 31, 1998).
23.1 Consent of KPMG LLP, Independent Auditors.
23.2 Consent of Pillsbury Madison & Sutro LLP (included in Exhibit 5.1)
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