<PAGE> 1
As filed with the Securities and Exchange Commission on February 19, 1999
Reg. No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
-------------------------------
FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
--------------------------------
CRITICARE SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 39-150563
-------------------------------------------------------------- ------------------------------------
(State or Other Jurisdiction of Incorporation or Organization) (I.R.S. Employer Identification No.)
20925 Crossroads Circle, Waukesha, WI 53186 (414) 798-8282
------------------------------------------------------------------------- ---------------------------------------
(Address, including Zip Code of Registrant's Principal Executive Offices) (Telephone Number, Including Area Code)
</TABLE>
Emil H. Soika
President and Chief Executive Officer
Criticare Systems, Inc.
20925 Crossroads Circle
Waukesha, WI 53186
(414) 798-8282
(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
Copies of all communications to:
REINHART, BOERNER, VAN DEUREN, NORRIS & RIESELBACH, S.C.
1000 North Water Street, Suite 2100
Milwaukee, WI 53202
Attn: Robert E. Bellin, Esq.
Telephone: (414) 298-1000
Facsimile: (414) 298-8097
--------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
<PAGE> 2
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------------
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Shares to be Price Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.04 Par Value 350,000 $1.63 $570,500 $159
- ---------------------------------------------------------------------------------------------------------------
</TABLE>
(1) CALCULATED IN ACCORDANCE WITH RULE 457(C) BASED ON THE AVERAGE OF
THE HIGH AND LOW SALES PRICES OF THE COMMON STOCK AS REPORTED ON
THE NASDAQ NATIONAL MARKET ON FEBRUARY 18, 1999, SOLELY FOR
PURPOSES OF CALCULATING THE AMOUNT OF THE REGISTRATION FEE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
2
<PAGE> 3
PROSPECTUS DATED FEBRUARY ___, 1999
350,000 SHARES
CRITICARE SYSTEMS, INC.
COMMON STOCK
TeleMed Technologies International, Inc. is offering for sale up to
350,000 shares of Criticare common stock. Because the shares offered under this
Prospectus will be sold by TeleMed, Criticare will not receive any proceeds from
the sale of these shares.
TeleMed has not advised Criticare of any specific plans it has for the
distribution of the shares covered by this Prospectus. Criticare anticipates
that TeleMed will sell the shares from time to time primarily in transactions
(which may include block transactions) on the Nasdaq National Market at the
market price then prevailing. However, TeleMed may also make sales in negotiated
transactions or otherwise. TeleMed and the brokers and dealers which may sell
the shares on TeleMed's behalf may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933, as amended, and their commissions or
discounts and other compensation may be regarded as underwriters' compensation.
Shares of Criticare common stock are traded on the Nasdaq National
Market.
Trading Symbol on Nasdaq National Market: CXIM
Last Sale Price on February 18, 1999: $1.69 per share
-----------------------------------------------------
CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 3 OF THIS
PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR
DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is February __, 1999.
<PAGE> 4
SUMMARY
This summary highlights selected information from this document and
from the documents that we incorporate by reference. For a more complete
description of the offering and Criticare, you should read carefully this entire
document and the documents to which we have referred you. See "Where You Can
Find More Information" (page 6).
CRITICARE SYSTEMS, INC.
20925 Crossroads Circle
Waukesha, Wisconsin 53186
(414) 798-8282
We design, manufacture and market vital signs and gas monitoring
instruments and related noninvasive sensors used to monitor patients in many
healthcare settings. Since a patient's oxygen, anesthetic gas and carbon dioxide
levels can change dramatically within minutes, causing severe side effects or
death, continuous monitoring of these parameters is increasing. Our monitoring
equipment improves patient safety by delivering accurate, comprehensive and
instantaneous patient information to physicians and other health service
clinicians. Our products also allow hospitals to contain costs primarily by
substituting cost-effective reusable pulse oximetry sensors for disposable
sensors, controlling the use of costly anesthetics and increasing personnel
productivity.
To meet the needs of end-users in a wide variety of patient settings,
we have developed a broad line of patient monitors which combine one or more of
our patented or other proprietary technologies, for monitoring oxygen
saturation, carbon dioxide and anesthetic agents, with standard monitoring
technologies that provide electrocardiogram, invasive and noninvasive blood
pressures, temperature, heart rate and respiration rate. In addition, our
VitalView telemetry system allows one nurse to monitor up to eight patients
simultaneously from a convenient central location. This allows hospitals to move
out of the intensive care unit those patients that require continuous
monitoring, but do not need all of an intensive care unit's extensive and costly
personnel and equipment resources.
FORWARD-LOOKING STATEMENTS MAY PROVE TO BE INACCURATE
We have made forward-looking statements in this document and in the
documents that we incorporate by reference that are subject to risks and
uncertainties. Without limitation, these forward-looking statements include
statements regarding new products we may introduce in the future, statements
about our business strategy and plans, statements about the adequacy of our
working capital and other financial resources, and in general statements that
are not of an historical nature. When we use words such as "believes,"
"expects," "anticipates" or similar expressions, we are making forward-looking
statements. You should note that forward-looking statements rely on a number of
assumptions concerning future events, and are subject to a number of
uncertainties and other factors, many of which are outside of our control, that
could cause actual results to differ materially from the statements. These
factors include those discussed under the caption "Risk Factors" in this
Prospectus. Please note that we disclaim any intention or obligation to update
or revise any forward-looking statements whether as a result of new information,
future events or otherwise.
2
<PAGE> 5
RISK FACTORS
Before purchasing our stock, you should carefully consider the
following risk factors and the other information contained in this Prospectus.
COMPETITION
The markets for our products are highly competitive. Many of our
competitors have greater engineering, research and development, manufacturing,
financial and marketing resources, as well as a more established market presence
and reputation. We have historically experienced substantial price competition
for our products and such price competition is likely to continue.
OPERATING LOSSES IN RECENT PERIODS
We have incurred net losses of $1,366,394, $499,276 and $2,179,489 for
the six months ended December 31, 1998 and our fiscal years ended June 30, 1998
and 1997, respectively. No assurance can be given that we will achieve or
sustain profitability. Any inability to achieve operating profitability or
positive cash flow could have a material adverse effect on us.
DEPENDENCE ON PATENTS ANd PROPRIETARY TECHNOLOGY
We rely on our patented and other proprietary technology including our
sensor technology, infrared specific anesthetic gas monitoring technology,
UltraSync signal processing software and disposable respiratory secretion filter
system. We can not assure that the actions taken by us to protect our
proprietary rights will be adequate to prevent imitation of our products,
processes or technology, that our proprietary information will not become known
to competitors, that others will not independently develop substantially
equivalent or better products that do not infringe on our intellectual property
rights or that other will not challenge or assert rights in, and ownership of,
our patents and other proprietary rights. Although none of our United States
patents expire before 2004, to the extent competitors develop equivalent or
superior non-infringing technology in these areas, or to the extent that we are
unable to enforce our patents, our ability to market and sell our products could
be materially adversely affected.
RISKS ASSOCIATED WITH INTERNATIONAL SALES
Since fiscal 1990, our international sales have grown faster than our
sales to any other market, and accounted for 46% of our total net sales for the
1998 fiscal year. We expect that international sales will continue to constitute
a significant portion of our business. Although we sell our products in United
States dollars and are not subject to significant currency risks, an increase in
the value of the United States dollar relative to foreign currencies in our
international markets could make our products less price competitive in such
markets. Also, our international sales are subject to the risks inherent in
doing business abroad, including delays in shipments, increases in import duties
and tariffs and changes in foreign regulations and political climate.
GOVERNMENT REGULATION
Our products are subject to regulation by the United States Food and
Drug Administration and comparable foreign governmental authorities. These
regulations can be burdensome and may substantially delay or prevent the
introduction of new products, materially increase the costs of any such product
introductions, interfere with or require cessation of product manufacturing and
marketing or result in product recalls. Additionally, adoption of new
regulations or modifications to applicable regulations could adversely affect
us.
COST CONTAINMENT PROGRAMS
The cost of a significant portion of medical care in the United States
is funded by government or other insurance programs. Additional limits imposed
by such programs on health care cost reimbursements may
3
<PAGE> 6
further impair the ability of hospitals and other health care providers to
purchase equipment such as our products and could adversely affect our domestic
sales.
POSSIBLE PRODUCT LIABILITY EXPOSURE
As a manufacturer of medical diagnostic equipment, we could face
product liability claims. We have had no product liability claims to date and
maintain product liability insurance. However, there can be no assurance that
such coverage will be adequate to cover any product liability claims which arise
in the future or that it will continue to be available at reasonable prices.
SINGLE SOURCES OF SUPPLY
Certain of our products incorporate components currently purchased from
single sources. While we believe these components are available from alternate
sources on reasonable terms, an interruption in the delivery of these components
could have a material adverse effect on us.
RISKS ASSOCIATED WITH THE YEAR 2000 ISSUE
Like many companies, we may be adversely affected by the Year 2000
computer problem. The Year 2000 issue relates to computer hardware and software
and other systems designed to use two digits rather than four digits to define
the applicable year. As a result, the Year 2000 would be translated as two
zeroes. Because the Year 1900 could also be translated as two zeroes, systems
which use two digits could read the date incorrectly for a number of
date-sensitive applications resulting in potential calculation errors or the
shutdown of major systems. We are in the process of updating our internal
computer software, other information technology and other operating systems for
purposes of Year 2000 compliance. We are also addressing the Year 2000
compliance of our new and existing products. We currently expect to complete our
Year 2000 compliance plan during fiscal 1999 and do not expect that our costs to
become Year 2000 compliant will be material to our financial condition or
results of operations. However, we can not assure you that we will not
experience any unanticipated problems in our internal systems with respect to
the Year 2000 which may have a material adverse effect on us.
Our operations may also be adversely affected to the extent that our
suppliers and other third parties are not Year 2000 compliant. We are in the
process of evaluating surveys circulated to key third parties to assess the Year
2000 compliance status of the operating systems of such third parties and the
potential impact on us of non-compliance. However, a number of risks relating to
the Year 2000 issue may be out of our control, including our reliance on outside
links for essential services such as communications and power. We can not assure
you that a failure of systems of third parties on which our systems and
operations rely to be Year 2000 compliant will not have a material adverse
effect on us.
POSSIBLE VOLATILITY OF STOCK PRICE; FLUCTUATIONS IN QUARTERLY RESULTS
Market prices of securities of medical technology companies, including
our common stock, have experienced significant volatility from time to time.
There may be volatility in the market price of the common stock due to factors
that may or may not relate to our performance. Various factors and events, such
as announcements by us or our competitors concerning new product developments,
governmental approvals, regulations or actions, developments or disputes
relating to patent or proprietary rights and public concern over product
liability may have a significant impact on the market price of our common stock.
In addition, our quarterly results have historically fluctuated.
4
<PAGE> 7
RECENT DEVELOPMENTS
Effective November 12, 1998, Gerhard J. Von der Ruhr resigned as
Chairman of the Board, President and Treasurer of Criticare and Dr. N.C. Joseph
Lai resigned as Vice Chairman of the Board, Senior Vice President and Secretary
of Criticare. On that date, Emil H. Soika was appointed as President and Chief
Executive Officer of Criticare and Karsten Houm, a member of Criticare's Board
of Directors, was appointed as Chairman of the Board. Mr. Soika is an
experienced general manager and operations executive, serving most recently as
Vice President and General Manager at Spacelabs Medical, a medical monitoring
and clinical information systems company, from 1995 to 1998. Prior to joining
Spacelabs Medical, Mr. Soika served in various positions at Baxter
International, Abbott Laboratories, Imed Corporation and Block Medical. Mr. Von
der Ruhr and Dr. Lai continue to serve as members of Criticare's Board of
Directors.
USE OF PROCEEDS
Criticare will not receive any proceeds from the sale of the shares by
TeleMed.
SELLING STOCKHOLDER
All of the shares of Criticare common stock offered for sale pursuant
to this Prospectus are being offered by TeleMed. Additional information with
respect to TeleMed follows.
<TABLE>
<CAPTION>
Shares of Common Stock Shares Offered Shares to be Owned
Owned Prior to Offering for Sale Hereby After the Offering*
----------------------- --------------- -------------------
Number Percent
------ -------
<S> <C> <C> <C> <C>
TeleMed Technologies
International, Inc. 350,000 350,000 - -
</TABLE>
*Assumes sale of all shares offered hereby.
PLAN OF DISTRIBUTION
TeleMed and any of its pledgees, donees, transferees and
successors-in-interest (collectively, the "Selling Stockholder") may, without
limitation and from time to time, sell all of a portion of the shares of common
stock being registered hereunder (the "Shares") on any stock exchange, market or
trading facility on which the Shares are traded, at market prices prevailing at
the time of sale, fixed prices or at negotiated prices. The Shares may, without
limitation, be sold by the Selling Stockholder by one or more of the following
methods:
- ordinary brokerage transactions and transactions in which the broker-
dealer solicits purchasers;
- block trades in which the broker-dealer engaged by the Selling
Stockholder will attempt to sell the Shares as agent for the Selling
Stockholder but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by such broker-
dealer for its account;
- privately negotiated transactions;
- in accordance with Rule 144 promulgated under the Securities Act of
1933, as amended, rather than pursuant to this prospectus;
- a combination of any such methods of sale; or
- any other method permitted pursuant to applicable law.
5
<PAGE> 8
From time to time the Selling Stockholder may pledge its Shares
pursuant to the margin provisions of the Selling Stockholder's customer
agreements with its brokers. Upon a default by such a Selling Stockholder, the
broker may, from time to time, offer and sell the pledged Shares.
In effecting sales, brokers-dealers engaged by the Selling Stockholder
may arrange for other broker-dealers to participate in such sales.
Brokers-dealers may receive commissions or discounts from the Selling
Stockholder (or, if any such broker-dealer acts as agent for the purchase of
such Shares, from such purchaser) in amounts to be negotiated which are not
expected to exceed those customary in the types of transactions involved.
Broker-dealers may agree with the Selling Stockholder to sell a specified number
of Shares at a stipulated price per share, and, to the extent such broker-dealer
is unable to do so acting as agent for the Selling Shareholder, to purchase as
principal any unsold Shares at the price required to fulfill the broker-dealer
commitment to the Selling Stockholder.
The Selling Stockholder and any broker-dealers or agents that
participate with the Selling Stockholder in sales of the Shares may be deemed to
be "underwriters" within the meaning of the Securities Act in connection with
such sales. In such event, any commissions received by such broker-dealers or
agents and any profit on the resale of the Shares purchased by them may be
deemed to be underwriting commissions or discounts under the Securities Act.
Criticare is required to pay all fees and expenses incident to the
registration of the Shares, other than the fees and disbursements of counsel to
the Selling Stockholder and underwriting discounts or commissions, if any.
Additionally, Criticare has agreed to indemnify the Selling Stockholder from
certain liabilities in connection with the offering, including liabilities under
the federal securities laws.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedule incorporated in this Prospectus by reference from
Criticare's Annual Report on Form 10-K for the year ended June 30, 1998, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
LEGAL MATTERS
The legality of the Shares offered hereby will be passed upon for
Criticare by Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c.
WHERE YOU CAN FIND MORE INFORMATION
Criticare files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). You may read and copy
any reports, proxy statements or other information we file at the Commission's
public reference room at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549 or at its public reference rooms in New York, New York, or Chicago,
Illinois. Please call the Commission at 1-800-SEC-0330 for further information
on the public reference rooms. You can also obtain copies of our Commission
filings by writing to the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549. In addition, many of our Commission
filings are available at the Commission's site on the World Wide Web at
"http//www.sec.gov."
Criticare has filed a Registration Statement on Form S-3 (the
"Registration Statement") to register with the Commission the Criticare common
stock offered for sale by the Selling Stockholder. This Prospectus is part of
that Registration Statement. As allowed by Commission rules, this Prospectus
does not contain all the information you can find in the Registration Statement
or the exhibits to the Registration Statement, which are incorporated herein by
reference. Statements contained herein concerning the provisions of documents
are necessarily summaries of such documents, and each statement is qualified in
its entirety by reference to the copy of the applicable document filed with the
Commission.
6
<PAGE> 9
The Commission allows us to "incorporate by reference" information in
this Prospectus, which means we can disclose important information to you by
referring you to another document filed separately with the Commission. The
information that we incorporate by reference is deemed to be part of this
Prospectus, except for any information superseded by information in this
Prospectus. This Prospectus incorporates by reference the documents set forth
below. These documents contain important information about Criticare and its
finances.
(a) Criticare's Annual Report on Form 10-K for the fiscal year ended
June 30, 1998.
(b) Criticare's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1998.
(c) Criticare's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998.
(d) The description of Criticare common stock which is contained in
Criticare's Registration Statement on Form 8-A filed on July 22, 1987 under the
Exchange Act, including all amendments and reports filed for the purpose of
updating such description.
We are also incorporating by reference all additional documents that we
file with the Commission between the date of this Prospectus and the termination
of the offering.
We will, without charge, provide you with copies of any of the
documents which are incorporated in this Prospectus by reference (other than
exhibits to such documents unless we have specifically incorporated those
exhibits by reference into this Prospectus). To obtain copies, please write or
call Joseph M. Siekierski, Vice President - Finance, Criticare Systems, Inc.,
20925 Crossroads Circle, Waukesha, Wisconsin 53186, (414) 798-8282.
7
<PAGE> 10
You should rely only on the information contained in this document or
other information we referred you to. We have not authorized anyone to provide
you with information that is different. This Prospectus does not constitute an
offer to sell or the solicitation of an offer to buy any security other than the
shares of common stock offered by this Prospectus, nor does it constitute an
offer to sell or a solicitation of an offer to buy shares of common stock in any
jurisdiction where such offer or solicitation would be unlawful. Neither the
delivery of this Prospectus nor any sales made hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of Criticare since the date hereof.
TABLE OF CONTENTS Page
Summary...........................................2
Risk Factors......................................3
Recent Developments...............................5
Use of Proceeds...................................5
Selling Stockholder...............................5
Plan of Distribution..............................5
Experts...........................................6
Legal Matters.....................................6
Where You Can Find More Information...............6
350,000 Shares
CRITICARE SYSTEMS, INC.
COMMON STOCK
PROSPECTUS
February ___, 1999
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses relating to the registration of the shares of common stock
being offered hereby, other than underwriting discounts and commissions, will
be borne by the Company. Such expenses are estimated to be as follows:
<TABLE>
<CAPTION>
ITEM AMOUNT
---- ------
<S> <C>
Securities and Exchange Commission
Registration Fee $ 181
Nasdaq Listing Fees 7,000
Printing and Engraving Fees 1,000
Legal Fees and Expenses 7,500
Accounting Fees and Expenses 1,000
Miscellaneous Expenses 1,500
-------
Total $18,181
=======
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws provide that the Company shall, to the fullest
extent permitted by the Delaware General Corporation Law and other applicable
laws, as in effect from time to time, indemnify any person who was or is a party
or is threatened to be made a party to any formal or informal threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, including, without limitation, any action
brought under federal or state securities laws, rules or regulations
(collectively, "Actions"), other than in certain limited circumstances, because
he is or was a director or officer of the Company, or because he is or was a
director or officer of the Company and is or was serving at the request of the
Company as a director, officer, employee, consultant or agent of another
corporation or other enterprise or is or was serving at the request of the
Company as a fiduciary of an employee benefit plan or as an employee or agent of
the Company; provided, however, that no director or officer shall be entitled to
indemnification unless, with respect to the conduct that is the subject of the
Action, he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interest of the Company and, with respect to any
criminal action or proceeding, he had no reasonable cause to believe his conduct
was unlawful. This indemnification obligation mirrors the permissive
indemnification provided under section 145 of the Delaware General Corporation
Law. The determination of whether indemnification is proper under the
circumstances, unless made by a court, shall be made (a) by arbitration; (b) by
the Board of Directors by a majority vote of a quorum consisting of directors
who are not parties to the subject Action; (c) if such quorum is not obtainable
or, even if obtainable, a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion; or (d) by the affirmative vote
of a majority of the shares entitled to vote thereon.
The Company's Certificate of Incorporation provides that a director
will not be personally liable for monetary damages to the Company or its
stockholders for or with respect to any acts or omissions in the performance of
his or her duties as a director, except for liability (i) for any breach of the
director's duty of loyalty to such 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) for paying a dividend or approving a stock
<PAGE> 12
repurchase in violation of section 174 of the Delaware General Corporation Law
or (iv) with respect to any transaction from which the director derived an
improper personal benefit.
Article VI, section 6.01 of the Company's Restated By-Laws provides
that a director or officer is not liable to the Company for damages arising out
of any action taken or omitted to be taken by such person if he exercised and
used the same degree of care and skill as a prudent man would have exercised or
used under the circumstances in the conduct of his own affairs or took or
omitted to take such action in reliance on the advice of the Company's counsel
or statements made or information furnished by officers or employees of the
Company which he had reasonable grounds to believe were true.
The indemnification provided as set forth above is not exclusive of any
other rights to which a director or an officer of the Company may be entitled.
The general effect of the foregoing provisions is to reduce the
circumstances in which an officer or director may be required to bear the
economic burdens of the foregoing liabilities and expenses.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- ------ -----------
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to the Registration Statement filed
on Form S-1, Registration No. 33-13050).
4.2 By-Laws of the Company (incorporated by reference to the
Registration Statement filed on Form S-1, Registration No.
33-13050).
4.3 Specimen Common Stock certificate (incorporated by reference
to the Registration Statement filed on Form S-1, Registration
No. 33-13050).
4.4 Specimen Convertible Debenture (incorporated by reference to
the Registration Statement filed on Form S-3, Registration No.
333-25153).
5 Opinion of Reinhart, Boerner, Van Deuren, Norris & Rieselbach,
s.c.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Reinhart, Boerner, Van Deuren, Norris & Rieselbach,
s.c. (included in its opinion filed as Exhibit 5 hereto).
24 Power of Attorney (incorporated by reference to the signature
page hereof).
<PAGE> 13
ITEM 17. UNDERTAKINGS
The undersigned Registrant undertakes as follows:
1. To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(b) 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% change
in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective Registration Statement, and
(c) 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(a) and (b) will 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 15(d) of the Securities Exchange Act of 1934 and which are
incorporated by reference in this Registration Statement.
2. That, for the purposes 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 a
post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
4. 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 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan 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.
5. Insofar as indemnification for liabilities arising
under the Securities Act of 1933 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 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 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.
<PAGE> 14
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waukesha, State of Wisconsin, on the 19th day of
February, 1999.
CRITICARE SYSTEMS, INC.
BY /s/ Emil H. Soika
---------------------------
Emil H. Soika, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Emil H. Soika and
Joseph M. Siekierski, and each of them individually, his true and lawful
attorney-in-fact, with power to act with or without the other and with full
power of substitution and resubstitution, in any and all capacities, to sign any
or all amendments (including post-effective amendments) to the Registration
Statement and 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 full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about the
premises, 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 their substitutes, may lawfully 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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Emil H. Soika President and Chief Executive February 19, 1999
- ------------------------------------ Officer
Emil H. Soika
/s/ Karsten Houm Chairman of the Board and February 19, 1999
- ------------------------------------ Director
Karsten Houm
/s/ Joseph M. Siekierski Vice President-Finance and February 19, 1999
- ------------------------------------ Assistant Secretary (Principal
Joseph M. Siekierski Accounting Officer and
Principal Financial Officer)
/s/ Milton Datsopoulos Director
- ------------------------------------
Milton Datsopoulos
/s/ N.C. Joseph Lai Director February 19, 1999
- ------------------------------------
N.C. Joseph Lai
/s/ Gerhard J. Von der Ruhr Director February 19, 1999
- ------------------------------------
Gerhard J. Von der Ruhr
</TABLE>
<PAGE> 15
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
- ------ ----------- ------
5 Opinion of Counsel
23.1 Consent of Deloitte & Touche LLP, Independent Auditors
<PAGE> 1
EXHIBIT 5
<PAGE> 2
February 18, 1999
Criticare Systems, Inc.
20925 Crossroads Circle
Waukesha, Wisconsin 53186
Gentlemen: Re: Registration Statement on Form S-3
We have acted as counsel for Criticare Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Company's registration of
350,000 shares (the "Shares") of its $.04 par value common stock at the request
of TeleMed Technologies International, Inc. ("TTI").
In such capacity we have examined, among other documents, the Restated
Certificate of Incorporation of the Company, as amended, a certificate of good
standing issued by the Secretary of State of the State of Delaware and the
Registration Statement on Form S-3 to be filed by the Company with the
Securities and Exchange Commission on or shortly after the date of this letter
covering the sale by TTI of the Shares. Based on the foregoing and such
additional investigation as we have deemed necessary, it is our opinion that the
Shares have been validly issued and are fully-paid and nonassessable.
We consent to the filing of a copy of this opinion as an exhibit to the
Registration Statement on Form S-3.
REINHART, BOERNER, VAN DEUREN,
NORRIS & RIESELBACH, s.c.
BY /s/ Robert E. Bellin
--------------------------------
Robert E. Bellin
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration Statement of
Criticare Systems, Inc. on Form S-3 of our reports dated August 20, 1998,
appearing and incorporated by reference in the Annual Report on Form 10-K of
Criticare Systems, Inc. for the year ended June 30, 1998, and to the reference
to us under the heading "Experts" in the Prospectus, which is part of such
Registration Statement.
/s/ Deloitte & Touche LLP
Deloitte & Touche LLP
Milwaukee, Wisconsin
February 15, 1999
