<PAGE>
As filed with the Securities and Exchange Commission on September 17, 1999
Registration No. 333- ______
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
----------
RESPIRONICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2782687
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1501 Ardmore Boulevard
Pittsburgh, Pennsylvania 15221
412-731-2100
(Address, including ZIP Code, and telephone number, including area code, of
registrant's principal executive offices)
----------
RESPIRONICS, INC. 1997 NON-EMPLOYEE DIRECTORS' FEE PLAN
James W. Liken
President and Chief Executive Officer
Respironics, Inc.
1501 Ardmore Boulevard
Pittsburgh, Pennsylvania 15221
(Name, address, including ZIP Code, and telephone number,
including area code, of agent for service)
Copy to:
Steven P. Fulton, Esq.
Respironics, Inc.
1501 Ardmore Boulevard
Pittsburgh, Pennsylvania 15221
412-473-4001
------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=================================================================================================
Title of Proposed Proposed Amount of
Securities to be Amount to be Maximum Offering Maximum Aggregate Registration
Registered Registered Price per share* Offering Price Fee
- -------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par value 23,646 shs. $9.875 $233,504.25 $64.89
- -------------------------------------------------------------------------------------------------
</TABLE>
*Estimated solely for the purposes of calculating the amount of the
registration fee and calculated in accordance with Rules 457(h) and (c) on the
basis of the average of the high and low sales prices of the Common Stock as
reported on the NASDAQ National Market System for September 15, 1999 as quoted
in The Wall Street Journal.
-----------------------
===============================================================================
Page 1 of 10. Exhibit Index appears on page 8.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents By Reference.
---------------------------------------
The following documents have been filed by Respironics, Inc. (the
"Company") with the Securities and Exchange Commission (the "SEC") (File No. 0-
16723) and are incorporated herein by reference:
(a) The Company's annual report on Form 10-K for the fiscal year ended
June 30, 1998;
(b) All of the reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") since the end of the
Company's fiscal year ended June 30, 1998; and
(c) The description of the Company's Common Stock which is contained
in the Joint Proxy Statement/Prospectus of the Company and Healthdyne
Technologies, Inc., filed as part of the Company's Registration Statement
on Form S-4 (No. 333-43703) dated January 5, 1998 (the "Joint Proxy
Statement").
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
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 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 hereof to the extent that a statement contained herein or in any
other subsequently filed incorporated document modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to exist or constitute a part hereof.
ITEM 4. Description of Securities.
-------------------------
Not applicable.
ITEM 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
ITEM 6. Indemnification of Directors and Officers.
-----------------------------------------
Section 145 of the DGCL. Section 145 of the DGCL provides that a
corporation may indemnify any person 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) by reason of the fact that he
is or was a director, officer, employee or agent of the corporation, or
II-1
<PAGE>
is or was serving at the request of the corporation as a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him in connection with such action, suit or
proceeding 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, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement or conviction, or upon a plea of nolo contendere or
its equivalent, shall not, of itself, create a presumption that the person did
not act in good faith and in a manner which he reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
Section 145 also provides that a corporation may indemnify any person 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 he is or was a director,
officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees) actually and reasonably incurred by him in
connection with the defense or settlement of such action or suit, 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 except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person 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 the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
To the extent that a director, officer, employee or agent of the
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to above, or in defense of any claim, issue
or matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
Any such indemnification (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because such person has met the applicable standard of conduct set
forth above. Such determination shall be made:
(1) by a majority vote of the directors who were not parties to such
action, suit or proceeding, even though less than a quorum; or
(2) if there are no such directors, or, if such directors so direct, by
independent legal counsel in a written opinion; or
(3) by the stockholders.
Section 145 permits a Delaware business corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any liability
asserted against such person and incurred by him in any such capacity, or
II-2
<PAGE>
arising out of his status as such, whether or not the corporation would have the
power to indemnify such person against such liability.
Section 102(b)(7) of the DGCL. Section 102(b)(7) of the DGCL provides that
a corporation may set forth in its Certificate of Incorporation a provision
eliminating or limiting the personal liability of a director to the corporation
or its stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director (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) under Section 174 of the DGCL regarding the unlawful payment of dividends
or approval of unlawful stock repurchases or redemptions, or (iv) for any
transaction from which the director derived an improper personal benefit. No
such provision shall eliminate or limit the liability of a director for any act
or omission occurring prior to the date when such provision becomes effective.
Certificate of Incorporation Provision on Liability of Directors and
Indemnification. The Company's Amended and Restated Certificate of
Incorporation (the "Charter") provides that, to the fullest extent permitted by
the DGCL, no director of the Company shall be personally liable to the Company
or its stockholders for monetary damages for breach of fiduciary duty as a
director. The Charter also provides that the Company shall indemnify, to the
fullest extent permitted by applicable law, any person who is or was a director
or officer of the Company for any liability and expense in connection with any
actual or threatened claim, action, suit or proceeding, whether civil or
criminal, administrative or investigative (including, without limitation, any
action, suit or proceeding by or in the right of the Company to procure a
judgment in its favor) by reason of the fact that such person is or was a
director or officer of the Company.
ITEM 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
ITEM 8. Exhibits.
--------
An Exhibit Index, containing a list of all exhibits filed herewith, is
included on page II-7.
ITEM 9. Undertakings.
------------
(a) Rule 415 offering.:
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 (the "1933 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)
II-3
<PAGE>
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 20 percent change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in
the effective 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 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
Securities Exchange Act of 1934 (the "1934 Act") that are incorporated
by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
1933 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; and
(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) Filings incorporating subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 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.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 6 above, 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
1933 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 1933 Act and
will be governed by the final adjudication of such issue.
II-4
<PAGE>
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 Pittsburgh, Commonwealth of Pennsylvania, on
September 15, 1999.
RESPIRONICS, INC.
By /s/ James W. Liken
James W. Liken
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 indicated on September 15, 1999.
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints James W. Liken, Daniel J. Bevevino and Steven P.
Fulton, and each of them, his true and lawful attorneys-in-fact and agents, with
full power of substitution and revocation, 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
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, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents or any of them, or their substitutes,
may lawfully do or cause to be done by virtue hereof.
Signature Title
--------- -----
/s/ James W. Liken
- -------------------------------- President, Chief Executive Officer and
James W. Liken Director (Principal Executive officer)
/s/ Daniel J. Bevevino
- -------------------------------- Vice President and Chief Financial Officer
Daniel J. Bevevino (Principal Financial and Accounting officer)
/s/ Daniel P. Barry
- -------------------------------- Director
Daniel P. Barry
/s/ Donald H. Jones
- -------------------------------- Director
Donald H. Jones
/s/ Joseph C. Lawyer
- -------------------------------- Director
Joseph C. Lawyer
II-5
<PAGE>
/s/ Gerald E. McGinnis
- -------------------------------- Director
Gerald E. McGinnis
/s/ Douglas A. Cotter
- -------------------------------- Director
Douglas A. Cotter
/s/ James H. Hardie
- -------------------------------- Director
James H. Hardie
/s/ J. Terry Dewberry
- -------------------------------- Director
J. Terry Dewberry
/s/ Craig B. Reynolds
- -------------------------------- Director
Craig B. Reynolds
/s/ J. Paul Yokubinas
- -------------------------------- Director
J. Paul Yokubinas
II-6
<PAGE>
EXHIBIT INDEX
-------------
(Pursuant to Item 601 of Regulation S-K)
<TABLE>
<CAPTION>
Exhibit Sequential
No. Description and Method of Filing Page
- ------- -------------------------------- ----------
<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation of the Company,
incorporated herein by reference to Exhibit 3.2 to the Company's
registration statement on Form S-1 (No. 33-20899). *
4.2 Articles of Amendment to Amended and Restated Certificate of
Incorporation of the Company, incorporated herein by reference
to Exhibit 4.2 to the Company's registration statement on Form S-8
(No. 33-36459). *
4.3 Amendment to Restated Certificate of Incorporation of the Company
filed as Exhibit 3.2 to Form S-1 (No. 33-39938). *
4.4 Amendment to Restated Certificate of Incorporation of the Company
filed as Exhibit 4.2 to Form S-8 (No. 33-89308). *
4.5 Amendment to Restated Certificate of Incorporation of the Company,
filed as Exhibit 3.5 to the Company's quarterly report on Form 10-Q
for the fiscal quarter ended December 31, 1996. *
4.6 Bylaws of Company, incorporated herein by reference to Exhibit 3.4 to
Amendment No. 2 to the Company's registration statement on Form S-1
(No. 33-20899). *
4.7 Amendment to the Bylaws of the Company, incorporated herein by
reference to Exhibit 3.7 to the Company's annual report on Form 10-K
for the fiscal year ended June 30, 1998. *
4.8 Amendment to the Bylaws of the Company, incorporated herein by
reference to Exhibit 3.8 to the Company's quarterly report on
Form 10-Q for the fiscal quarter ended December 31, 1998. *
5.1 Opinion of Reed Smith Shaw & McClay LLP, regarding legality of
shares of the Company's Common Stock being registered. 9
23.1 Consent of Reed Smith Shaw & McClay LLP (contained in the opinion
filed as exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, LLP, independent auditors. 10
24.1 Powers of Attorney (filed herewith as part of the signature pages) .
</TABLE>
- -----------------------
* Incorporated by reference.
II-7
<PAGE>
Exhibit 5.1
Reed Smith Shaw & McClay LLP
435 Sixth Avenue
Pittsburgh, Pennsylvania 15219-1886
Phone: 412-288-3131
Fax: 412-288-3063
September 17, 1999
Respironics, Inc.
1501 Ardmore Boulevard
Pittsburgh, PA 15221
Re: Registration Statement on Form S-8 for Respironics, Inc.
1997 Non-Employee Directors' Fee Plan
----------------------------------------------------------------------
Ladies and Gentlemen:
We have acted as counsel to Respironics, Inc., a Delaware corporation
(the "Company"), in connection with the above-captioned Registration Statement
(the "Registration Statement") relating to up to 25,000 shares of Common Stock,
par value $.01 per share, of the Company (the "Common Stock") which may be
issued to non-employee directors of the Company pursuant to the Company's 1997
Non-Employee Directors' Fee Plan (the "Plan"). The Plan provides that either
authorized but unissued or treasury shares of Common Stock may be issued upon
the exercise of stock options granted under the Plan. In rendering our opinion
below, we have assumed that any previously issued shares reacquired by the
Company and delivered under the Plan will have been duly authorized, validly
issued and fully paid at the time of their original issuance.
In connection with this opinion, we have examined, among other things:
(1) the Amended and Restated Certificate of Incorporation of the
Company;
(2) action taken by the Board of Directors of the Company on
November 18, 1998 ratifying and re-adopting the Plan, which
was originally adopted November 1, 1997, authorizing the
issuance of up to 25,000 shares of Common Stock thereunder and
reserving 25,000 shares of Common Stock for such purpose; and
(3) the Plan, as currently in effect.
Based upon the foregoing and upon an examination of such other
documents, corporate proceedings, statutes, decisions and questions of law as we
considered necessary in order to enable us to furnish this opinion, and subject
to the assumption set forth above, we are pleased to advise you that in our
opinion the 25,000 shares of Common Stock being registered and which may be
issued by the Company pursuant to the provisions of the Plan have been duly
authorized, and upon such issuance in accordance with the provisions of the Plan
such shares will be validly issued, fully paid and nonassessable.
In rendering the foregoing opinion, we have not examined the laws of
any jurisdiction other than the laws of the Commonwealth of Pennsylvania, the
General Corporate Laws of the State of Delaware and the federal laws of the
United States of America and the foregoing opinion is limited to such laws.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of our name in the Prospectus under the
caption "Legal Opinion."
Yours truly,
/s/ Reed Smith Shaw & McClay LLP
REED SMITH SHAW & McCLAY LLP
ARN:JGA
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the 1997 Non-Employee Directors' Fee Plan of our report
dated September 28, 1998, with respect to the consolidated financial statements
and schedule of Respironics, Inc. included in its Annual Report (Form 10-K) for
the year ended June 30, 1998, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
ERNST & YOUNG LLP
Pittsburgh, Pennsylvania
September 17, 1999
