As filed with the Securities and Exchange Commission on November 12 , 1996
SEC File No. 0-14189
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Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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INTERWEST HOME MEDICAL, INC.
(Exact name of Registrant as specified in its charter)
Utah 87-0462042
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
261 East 5100 South
Salt Lake City, Utah 84107-7349
(Address of principal executive offices)
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INTERWEST HOME MEDICAL, INC.
1995 STOCK OPTION PLAN;
1995 NON-EMPLOYEE DIRECTOR STOCK OPTION
PLAN; and 1995 STOCK PURCHASE PLAN
(Full title of plans)
James E. Robinson
Interwest Home Medical, Inc.
235 East 5100 South
Salt Lake City, UT 84107
(Name and address of agent for service)
(801) 261-5100
(Telephone number of agent for service)
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with copies to:
A.O. Headman, Jr., Esq.
Cohne Rappaport & Segal, PC.
525 East 100 South, Fifth Floor
Salt Lake City, Utah 841021
(801) 532-2666
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
Title of Securities Amount to Proposed Maximum Proposed Maximum Amount of
to be Registered be Offering Price Per Unit Aggregate Offering Price Registration Fee
Registered
<S> <C> <C> <C> <C>
Common Stock 312,500 $5.00.(2) $1,451,500 $500.52
(No Par Value) (1)
Common Stock 5,000(3) $5.00(4) $ 361,100 $124.48
(No Par Value)
Common Stock 500,000 $4.25 (6) $2,125,000 $732.76
(No Par Value) (5)
TOTAL $3,937,600 $1,357.80
(Footnotes on following page)
</TABLE>
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Pursuant to Rule 416, this Registration Statement also covers such
indeterminable number of additional shares as may become issuable pursuant to
terms designed to prevent dilution resulting from stock splits, stock dividends
or similar events.
(1) Represents shares of common stock reserved for issuance pursuant to
options granted or available for grant under the Registrant's 1995 Stock Option
Plan. The Registrant has heretofore granted its employees options to purchase
148,000 of shares under this Plan, none of which have been exercised.
(2) Estimated solely for the purpose of calculating the registration fee
for 312,500 shares under the Interwest Home Medical, Inc. 1995 Stock Option Plan
on the basis of (i) the average exercise price for the 148,000 shares underlying
options which have been granted - ($4.25 per share); and (ii) for the remaining
164,500 shares on the basis of average of the high and low prices reported for
shares of Interwest Home Medical, Inc. common stock on November 1, 1996, as
reported by NASDAQ's Small Cap Market in accordance with Rule 457 (h)
promulgated under the Securities Act of 1933, as amended (the "Act")
(3) Represents common stock reserved for issuance pursuant to options
granted or available for grant under the Interwest Home Medical, Inc. 1995
Non-Employee Directors Stock Option Plan. The Registrant has heretofore granted
its non-employee directors options to purchase 31,000 of shares under this Plan,
none of which have been exercised.
(4) Estimated solely for the purpose of calculating the registration fee
for 75,000 shares under the Interwest Home Medical, Inc. 1995 Non-Employee Stock
Option Plan on the basis of (i) the average exercise price for the 31,000 shares
underlying options which have been granted - ($4.55 per share); and (ii) for the
remaining 44,000 shares on the basis of average of the high and low prices
reported for shares of Interwest Home Medical, Inc. common stock on November 1,
1996, as reported by NASDAQ's Small Cap Market in accordance with Rule 457 (h)
promulgated under the Act.
(5) Represents the number of shares authorized to be issued under the
Interwest Home Medical Employee Stock Purchase Plan.
(6) Estimated in accordance with Rule 457(h) under the Act solely for the
purpose of calculating the total registration fee. Computation based upon 85%
(see explanation in following sentence) of the average of the high and low
prices of the Common Stock as reported by NASDAQ's Small Cap Market in
accordance with Rule 457 (h) promulgated under the Act. Pursuant to the Employee
Stock Purchase Plan, which plan is incorporated by reference herein, the
purchase price of a share of Common Stock shall be an amount equal to 85% of the
Fair Market Value of a share of Common Stock on the Enrollment Date or the
Exercise Date (as defined in such Plan), whichever is lower.
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EXPLANATORY NOTE
Pursuant to Rule 428(b) (1) under the Securities Act of 1933, as amended
(the "Securities Act"), an Information Statement will be distributed to holders
of options granted under (i) the Interwest Home Medical, Inc. 1995 Stock Option
Plan; (ii) the Interwest Home Medical, Inc. Non-Employee Directors Stock Option
Plan; and (iii) the Interwest Home Medical, Inc. Stock Purchase Plan. The
Information Statements and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken
together, constitute a prospectus that meets the requirements of the Securities
Act.
_______________________________
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
Not required to be filed with this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
Not required to be filed with this Registration Statement
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents By Reference.
The following documents filed by Interwest Home Medical, Inc. with the
Securities and Exchange Commission as of their respective dates are incorporated
by reference in this registration statement:
(a) Registrant's Annual Report on Form 10-KSB for the fiscal year ending
September 30, 1995, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended.
(b) Registrant's quarterly reports on Form 10-QSB for the fiscal quarter
ended December 30, 1995, March 31, 1996, and June 30, 1996, and all other
reports, if any, filed by the Registrant pursuant to Section 13(a) or 15(d) of
the Securities Exchange Act of 1934 since the end of the fiscal year ended
September, 1995.
(c) The description of Registrant's common stock contained in the
Registration Statement on Form 10 filed with the Commission in December, 1983,
including any amendments or reports filed for the purpose of updating such
description.
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All documents filed by the Registrant pursuant to Sections 13(a), 13(c) 14
and 15(d) of the Securities Exchange Act of 1934 after the date of this
registration statement which indicates that all securities offered hereunder
have been sold, or which deregisters all securities then remaining unsold under
this registration statement, 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.
From time to time, the Registrant may publish forward-looking statements
relating to such matters as anticipated financial performance, business
prospects, technological developments, new products, research and development
activities and similar matters. The Private Securities Litigation Reform Act of
1995 provides a safe harbor for forward-looking statements. In order to comply
with the terms of the safe harbor, the Registrant notes that a variety of
factors could cause the Registrant's actual results and experience to differ
materially from the anticipated results or other expectations expressed in any
of the Registrant's forward-looking statements. The risks and uncertainties that
may affect the operations, performance, development and results of the
Registrant's business include, but are not limited to, the following: (i) the
failure to obtain additional capital for acquisitions and expansion; (ii)
adverse changes in federal and state laws, rules and regulations relating to the
home health care industry, to government reimbursement policies, to private
industry reimbursement policies and to other matters affecting the Registrant's
industry and business; and (iii) continued consolidation by the Registrant's
local, regional and national competitors resulting in increased competition.
ITEM 4. Description of Securities
Not applicable; the class of securities to be offered is registered under
Section 12 of the Securities Exchange Act of 1934, as amended.
ITEM 5. Interests of Named Experts and Counsel
As of the date hereof, a member of Cohne, Rappaport & Segal, P.C.
beneficially owns a total of 500 shares of the Registrant's Common Stock.
ITEM 6. Indemnification of Directors and Officers.
As permitted by sections 841 of the Revised Business Corporations Act of
the State of Utah, the Registrant's Articles of Incorporation eliminate a
director's personal liability for monetary damages to the Registrant and its
shareholders arising from a breach of alleged breach of a director's fiduciary
duty except for (i) liability under section 842 of the Revised Business
Corporation Act; (ii) liability for the amount of a financial benefit received
by a director to which he is not entitled; (iii) liability for any intentional
infliction of harm on the corporation or the shareholders; and (iv) liability
for an intentional violation of criminal law. The effect of this provision in
the Certificate of Incorporation is to eliminate the rights of the Registrant
and its shareholders (through shareholders' derivative suits on behalf of the
Registrant) to recover monetary damages against a director for breach of
fiduciary duty as a director (including breaches resulting from negligent or
grossly negligent behavior) except in the situation described above.
The Registrant's Articles of Incorporation and Bylaws provide for
indemnification of officers, directors and employees, and the Registrant has
entered into an indemnification agreement with each officer
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and director of the Registrant (an "Indemnitee"). Under the Bylaws and such
indemnification agreements, the Registrant must indemnify an Indemnitee to the
fullest extent permitted by Utah law for losses and expenses incurred in
connection with actions in which the Indemnitee is involved by reason of having
been a director or employee of the Registrant. The Registrant is also obligated
to advance expenses an Indemnitee may incur in connection with such actions
before any resolution of the action, and the Indemnitee may sue to enforce his
or her right to indemnification or advancement of expenses.
There is no litigation pending, and neither the Registrant nor any of its
directors know of any threatened litigation, which might result in a claim for
indemnification by any director or officer.
ITEM 7. Exemption From Registration Claimed.
Not Applicable.
ITEM 8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit
Number Description
4.1 1995 Stock Option Plan (filed as Exhibit 10.1 of the Registrant's
Form 10-KSB for the year ended September 30, 1995, as filed with
the Commission and incorporated herein by reference.)
4.2 1995 Non-Employee Director Stock Option Plan (filed as Exhibit
10.2 of the Registrant's Form 10-KSB for the year ended September
30, 1995, as filed with the Commission and incorporated herein by
reference.)
4.3. 1995 Employee Stock Purchase Plan (filed as Exhibit 10.1 of the
Registrant's Form 10-KSB for the year ended September 30, 1995,
as filed with the Commission and incorporated herein by
reference.)
5.1 Opinion Regarding Legality and Consent
23.1 Consent of Tanner & Co.
25.1 Power of Attorney-Located on Signature Page
ITEM 9. Undertakings.
(a) Rule 415. 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:
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<PAGE>
(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 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.
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 that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, 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 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 of 1933, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) 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 of 1933 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, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by a
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 Act and shall 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 Salt Lake, State of Utah, on the 6th day of November,
1996.
Interwest Home Medical, Inc.
Date: November 6, 1996 By/s/ James E. Robinson
James E. Robinson
Chief Executive Officer
Date: November 6, 1996 By/s/ Que H. Christensen
Que H. Christensen
Secretary/Treasurer
Principal Financial Officer
In accordance with the Securities Exchange Act, this report has been signed
below by the following persons on behalf of the Registrant and in the capacities
and on the dates indicated.
Signature Capacity Date
/s/ James E. Robinson CEO/Director November 6, 1996
James E. Robinson
/s/ James U. Jensen Director November 6, 1996
James U. Jensen
/s/ Dr. Michael C. Romney Director November 6, 1996
Dr. Michael C. Romney
/s/ Daniel L. Richards Director November 6, 1996
Daniel L. Richards
/s/ Dr. Jeffrey F. Poore Director November 6, 1996
Dr. Jeffrey F. Poore
/s/ Jerald L. Nelson Director November 6, 1996
Jerald L. Nelson
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November 12, 1996
Board of Directors
Interwest Home Medical, Inc.
235 East 6100 South
Salt Lake City, UT 84107
Gentlemen:
We have examined the Registration Statement on Form S-8 to be filed by
Interwest Home Medical, Inc. with the Securities and Exchange Commission on
November 12, 1996 (the "Registration Statement") in connection with the
registration under the Securities Act of 1933, as amended, of an aggregate of
887,500 shares of your Common Stock, no par value (the "Shares"), (i) 312,500
shares of which are issuable pursuant to the 1995 Stock Option Plan, (ii) 75,000
shares of which are issuable pursuant to the 1995 Non-Employee Director Stock
Option Plan and (iii ) 500,000 shares of which are issuable (of which 2,081 have
been issued) pursuant to the 1995 Stock Purchase Plan (collectively, the
"Plans"). As your counsel in connection with this transaction, we have examined
the proceedings taken and are familiar with the proceedings proposed to be taken
by you in connection with the issuance and sale of the Shares pursuant to the
Plans.
It is our opinion that, when issued and sold in the manner described in the
Plans and pursuant to the agreements which accompany each grant under the Plans,
the Shares will be legally and validly issued, fully-paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
Very truly yours,
COHNE, RAPPAPORT & SEGAL
\s\ Cohne, Rappaport & Segal
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CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 4, 1996, which appears on page
19 of the 1995 Annual report to Shareholders of Interwest Medical, Inc., and to
the references to our Firm under the caption "Experts" in the Prospectus.
/s/ Tanner + Co.
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Tanner + Co.
Sal Lake City, UT
November 18, 1996
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