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As filed with the Securities and Exchange Commission on February 4, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
SUNRISE MEDICAL, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 95-3836867
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
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2382 Faraday Avenue, Suite 200
Carlsbad, California 92008
(Address of Principal Executive Offices including Zip Code)
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SUNRISE MEDICAL, INC. ASSOCIATE STOCK PURCHASE PLAN 2000
(Full Title of the Plan)
--------------------------
STEVEN A. JAYE, ESQ. Copy to:
Senior Vice President, Secretary REGINA M. SCHLATTER, ESQ.
and General Counsel Latham & Watkins
Sunrise Medical Inc. 650 Town Center Drive, 20th Floor
2382 Faraday Avenue, Suite 200 Costa Mesa, California 92626
Carlsbad, California 92008 (714) 540-1235
(760) 930-1500
--------------------------
(Name and Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
--------------------------
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
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Proposed
Proposed Maximum
Amount Maximum Aggregate Amount of
to be Offering Price Offering Registration
Registered Per Share (1) Price (1) Fee
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<S> <C> <C> <C> <C>
Common Stock (2), $1.00 Par Value 1,000,000 $4.38 $4,380,000 $1,156
- --------------------------------------------------------------------------------------------------
(1) Estimated solely for the purposes of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended, and is
based on the average of the high and low sales price of the Common Stock, as
reported on the New York Stock Exchange on February 3, 2000.
(2) Each share of Common Stock being registered hereunder, if issued prior to
the termination by the Company of its Amended and Restated Rights Agreement,
will include one Common Share Purchase Right. Prior to the occurrence of
certain events, the Common Share Purchase Rights will not be exercisable or
evidenced separately from the Common Stock.
</TABLE>
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Proposed sale to take place as soon after the effective date of the Registration
Statement as options granted under the Option Plan are exercised.
Total Pages 10
Exhibit Index on Page 8
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of the Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
----------------------------------------
The following documents filed by the Company with the Commission are
incorporated herein by reference:
(a) The description of the Common Stock contained in the Company's
registration statement on Form 8-A filed with the Commission on June 29, 1992,
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") including any subsequent amendment or report filed for the
purpose of updating such description;
(b) The description of the Common Share Purchase Rights contained in
the Company's registration statement on Form 8-A12B/A filed with the Commission
on May 16, 1997, as further amended by the description contained in the
Company's registration statement on Form 8-A12B/A filed with the Commission on
February 11, 1999;
(c) The Company's Annual Report on Form 10-K for the fiscal year ended
July 2, 1999 (including items incorporated by reference from the Company's
Definitive Proxy Statement for its Annual Meeting of Stockholders held on
December 15, 1999);
(d) The Company's Quarterly Report on Form 10-Q for the quarterly
period ended October 1, 1999; and
(e) The Company's Current Report on Form 8-K filed with the Commission
on January 26, 2000.
In addition, all documents filed by the Company pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this
registration statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which reregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this registration statement and to be a part of it from the
respective dates of filing such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this registration statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
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Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Named Experts and Counsel
-------------------------
The financial statements of Sunrise Medical, Inc. as of July 2, 1999
and July 3, 1998 and for each of the years in the three year period ended July
2, 1999 have been incorporated in this registration statement in reliance upon
the report of KPMG LLP, independent certified public accountants, incorporated
by reference herein, and upon the authority of said firm as experts in
accounting and auditing. To the extent that KPMG LLP audits and reports on
financial statements of Sunrise Medical, Inc. issued at future dates, and
consents to the use of their report thereon, such financial statements also will
be incorporated by reference in the registration statement in reliance upon
their report and said authority.
Item 6. Indemnification of Directors and Officers
-----------------------------------------
Sunrise is a Delaware corporation. Subsection (b)(7) of Section 102 of
the Delaware General Corporation Law, enables a corporation in its original
certificate of incorporation or an amendment thereto to eliminate or limit the
personal liability of a director to the corporation or its stockholders for
monetary damages for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the Delaware General Corporation Law (providing for liability of
directors for unlawful payment of dividends or unlawful stock purchases or
redemptions) or (iv) for any transaction from which a director derived an
improper personal benefit.
Subsection (a) of Section 145 of the Delaware General Corporation Law
empowers a corporation to indemnify any director or officer, or former director
or officer, who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with such action, suit or proceeding provided that such director
or officer acted in good faith in a manner reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal action or proceeding, provided further that such director or officer
had no reasonable cause to believe his conduct was unlawful.
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect to any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Our Certificate of Incorporation and Bylaws provide in effect for the
indemnification of our officers and directors to the extent permitted by
applicable law; provided, however, under our Bylaws, we are required to
indemnify an officer or director in connection with a proceeding (or part
thereof) commenced by such officer or director only if the commencement of such
proceeding (or part thereof) by the officer or director was authorized by our
board of directors.
The Company has in effect insurance policies covering all of its
directors and officers.
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Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits
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See Index to Exhibits on page 8.
Item 9. Undertakings.
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(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;
(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.
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
percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this
registration statement or any material change to such information
in this registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-
effective amendment by those paragraphs 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
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 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, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 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) 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 Commission 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
4
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liabilities (other than the payment by 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 Securities Act and will be governed by the final adjudication
of such issue.
5
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Company 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 Carlsbad, State of California, on February 3, 2000.
SUNRISE MEDICAL, INC.
By: /s/ Michael N. Hammes
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Michael N. Hammes, President and Chief
Executive Officer
(Principal Executive Officer)
By: /s/ Ted N. Tarbet
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Ted N. Tarbet, Senior Vice President and
Chief Financial Officer (Principal Financial
Officer)
By: /s/ John M. Radak
-----------------
John M. Radak, Vice President
and Controller (Principal Accounting
Officer)
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENT, that each person whose signature appears
below constitutes and appoints Michael N. Hammes and Steven A. Jaye, and each of
them, his true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
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 order to effectuate the same as fully, to
all intents and purposes, as he might or could do in person, hereby ratifying
and confirming all that each of said attorneys-in-fact and agents, or any of
them, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities indicated
as of February 3, 2000.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Michael N. Hammes President and Chief Executive Officer (Principal
- ----------------------------------------- Executive Officer)
Michael N. Hammes
/s/ Ted N. Tarbet Senior Vice President and Chief Financial Officer
- ----------------------------------------- (Principal Financial Officer)
Ted N. Tarbet
/s/ John M. Radak Vice President and Controller
- ----------------------------------------- (Principal Accounting Officer)
John M. Radak
/s/ Murray H. Hutchinson Chairman of the Board of Directors
- -----------------------------------------
Murray H. Hutchinson
/s/ Lee A. Ault III Director
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Lee A. Ault III
/s/ William L. Pierpoint Director
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William L. Pierpoint
/s/ Joseph Stemler Director
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Joseph Stemler
/s/ John R. Woodhull Director
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John R. Woodhull
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
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<S> <C> <C>
4.1 Amended and Restated Shareholders' Rights Agreement dated May, 16, 1997 (Note 1)
4.2 First Amendment to Amended and Restated Shareholders' Rights Agreement dated (Note 2)
February 9, 1999
5.1 Opinion of Latham & Watkins. 9
23.1 Consent of KPMG LLP. 10
23.2 Consent of Latham & Watkins (included in Exhibit 5.1). 9
24.1 Power of Attorney (included in the signature page to this Registration 7
Statement).
</TABLE>
(1) Incorporated by reference to our Registration Statement on Form 8-A12B/A
filed with the Commission on May 16, 1997.
(2) Incorporated by reference to our Registration Statement on Form 8-A12B/A
filed with the Commission on February 11, 1999.
8
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EXHIBIT 5.1
[LATHAM & WATKINS LETTERHEAD]
February 3, 2000
Sunrise Medical, Inc.
2382 Faraday Avenue, Suite 200
Carlsbad, California 92008
Re: Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933, as
amended, of an aggregate of 1,000,000 shares (the "Shares") of common stock, par
value $1.00 per share, of Sunrise Medical, Inc., a Delaware corporation (the
"Company"), issuable under the Sunrise Medical, Inc. Associate Stock Purchase
Plan 2000 (the "Plan") by the Company on a Registration Statement on Form S-8
(the "Registration Statement") to be filed with the Securities and Exchange
Commission you have requested our opinion with respect to the matters set forth
below.
We have made such legal and factual examinations and inquiries, including
an examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we have
deemed necessary or appropriate for purposes of this opinion. In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals, and the conformity to authentic
original documents of all documents submitted to us as copies.
We are opining herein as to the effect on the subject transaction only of
the General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing and in reliance thereon, we are of the opinion
that, as of the date hereof, upon the issuance and sale of the Shares, each in
the manner contemplated by the Registration Statement and in accordance with the
terms of the Plan, and subject to the Company completing all action and
proceedings required on its part to be taken prior to the issuance of the Shares
pursuant to the terms of the Plan and the Registration Statement, including,
without limitation, collection of required payment for the Shares, the Shares
will be legally and validly issued, fully paid and nonassessable securities of
the Company.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours
/s/LATHAM & WATKINS
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EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
-----------------------------
The Board of Directors
Sunrise Medical Inc.
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Named Experts and Counsel" in the
registration statement.
/s/KPMG LLP
San Diego, California
February 4, 2000
