As filed with the Securities and Exchange Commission on August 2, 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)
Delaware 39-150563
-------- ---------
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
20925 Crossroads Circle, Waukesha, WI 53186 (414) 798-8282
---------------------------------------------- --------------
(Address, including Zip Code of (Telephone Number,
Registrant's Principal Executive Offices) Including Area Code)
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. /_/
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<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
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
Common Stock,
$.04 Par Value 150,000 $ 2.04 $ 306,000 $ 86
================ ========== ============== =========== =============
<FN>
(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 JULY 26, 1999, SOLELY FOR PURPOSES OF CALCULATING THE AMOUNT OF THE
REGISTRATION FEE.
</TABLE>
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.
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<PAGE>
PROSPECTUS
- ----------
150,000 SHARES
CRITICARE SYSTEMS, INC.
COMMON STOCK
The selling stockholder, Dynamic Options Corporation, Inc., is offering for
sale up to 150,000 shares of our common stock. Because the shares offered under
this prospectus will be sold by the selling stockholder, we will not receive any
proceeds from the sale of these shares.
The selling stockholder will sell the shares of our common stock from time
to time primarily in transactions (which may include block transactions) on the
Nasdaq National Market at the market price then prevailing, or in privately
negotiated transactions, through one or more broker-dealers selected by us. The
selling stockholder and the brokers and dealers which may sell the shares on the
selling stockholder'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 our common stock are traded on the Nasdaq National Market.
Trading Symbol on Nasdaq National Market: CXIM
Last Sale Price on July 26, 1999: $2.06 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.
____________________, 1999
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<PAGE>
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 us, 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.
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<PAGE>
RISK FACTORS
Before purchasing our stock, you should carefully consider the following
risk factors and the other information contained in this prospectus.
WE FACE SIGNIFICANT COMPETITION IN OUR MARKETS. AS A RESULT, WE MAY NOT BE ABLE
TO INCREASE OUR MARKET SHARE OR PROFIT MARGINS.
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.
WE HAVE A HISTORY OF SIGNIFICANT LOSSES. IF WE DO NOT ACHIEVE PROFITABILITY,
OUR FINANCIAL CONDITION AND STOCK PRICE COULD SUFFER.
We incurred net losses of $2,179,489 in fiscal 1997, $499,276 in fiscal
1998 and $2,048,595 in the nine months ended March 31, 1999. We expect to incur
a net loss in fiscal 1999. Although we completed a restructuring program during
fiscal 1999 in an effort to attain profitability, we cannot assure you that we
will be able to achieve or sustain profitability in future periods.
OUR SUCCESS DEPENDS ON OUR ABILITY TO PROTECT OUR INTELLECTUAL PROPERTY.
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. The actions taken by us to protect our proprietary rights may not 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.
INTERNATIONAL SALES MAKE OUR BUSINESS SUSCEPTIBLE TO NUMEROUS INTERNATIONAL
BUSINESS RISKS AND CHALLENGES THAT COULD AFFECT OUR PROFITABILITY.
International sales 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.
WE OPERATE IN A HIGHLY REGULATED INDUSTRY.
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.
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5
<PAGE>
HEALTH CARE COST CONTAINMENT PROGRAMS COULD ADVERSELY AFFECT OUR SALES.
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 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.
OUR BUSINESS IS SUBJECT TO 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.
WE RELY ON SINGLE SOURCES OF SUPPLY FOR MANY OF THE KEY COMPONENTS OF OUR
PRODUCTS.
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.
WE MAY BE ADVERSELY AFFECTED BY THE YEAR 2000 BECAUSE OUR SYSTEMS OR OUR
SUPPLIER'S SYSTEMS MAY FAIL.
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 the quarter ending September 30, 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 circulated
surveys to key third parties during fiscal 1999 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.
OUR STOCK PRICE MAY FLUCTUATE, INCREASING THE RISK TO INVESTORS IN OUR COMMON
STOCK.
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.
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<PAGE>
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by the selling
stockholder.
SELLING STOCKHOLDER
All of the shares of our common stock offered for sale pursuant to this
prospectus are being offered by the selling stockholder. We issued the shares
to the selling stockholder in July 1999 as part of the settlement of litigation
between the selling stockholder and us. To the extent that the total proceeds
to the selling stockholder from the sale of the shares of our common stock
pursuant to this prospectus are less than $300,000, we have agreed to make
additional payments to the selling stockholder equal to the difference between
$300,000 and the total proceeds from the sale of the common stock. Pursuant to
this settlement, we also made a cash payment to the selling stockholder and
agreed to transfer to the selling stockholder shares we hold in Immtech
International, Inc. We also agreed to make an interest-free loan to the selling
stockholder which will be secured by the shares of Immtech stock and repaid by
the selling stockholder using the proceeds from the sale of the shares of the
Immtech stock.
Information with respect to the shares of our common stock beneficially
owned by the selling stockholder follows.
<TABLE>
<CAPTION>
Shares of Common Stock Shares Offered Shares to be Owned
<S> <C> <C> <C> <C>
Owned Prior to Offering for Sale Hereby After the Offering*
----------------------- --------------- -------------------
Number Percent
------------------- -------
Dynamic Options
Corporation, Inc. 150,000 150,000 - -
</TABLE>
*Assumes sale of all shares offered by this prospectus.
PLAN OF DISTRIBUTION
The selling stockholder has agreed that all of the shares of our common
stock offered pursuant to this prospectus will be sold through one or more
broker-dealers selected by us. The selling stockholder will sell the shares of
our common stock from time to time primarily in transactions (which may include
block transactions) on the Nasdaq National Market at the market price then
prevailing or in privately negotiated transactions.
EXPERTS
The consolidated financial statements and the related consolidated
financial statement schedule as of June 30, 1998 and 1997 and for each of the
three years in the period ended June 30, 1998 incorporated by reference in this
prospectus have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports, which are incorporated by reference herein, 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 of our common stock offered hereby will be
passed upon for us by Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission (SEC). You may read and copy any reports, proxy
statements or other information we file at the SEC'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
SEC at 1-800-SEC-0330 for further information on
5
the public reference rooms.
You can also obtain copies of our SEC filings by writing to the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, many of our SEC filings are available at the SEC's site on the World
Wide Web at "http//www.sec.gov."
We have filed a Registration Statement on Form S-3 to register with the SEC
the common stock offered for sale by the selling stockholder. This prospectus
is part of that registration statement. As allowed by SEC rules, this
prospectus does not contain all the information you can find in the registration
statement or the exhibits to the registration statement, which we are
incorporating in this prospectus by reference.
The SEC 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 SEC. 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 us and our finances.
- - Annual Report on Form 10-K for the fiscal year ended June 30, 1998.
- - Quarterly Report on Form 10-Q for the quarter ended September 30, 1998.
- - Quarterly Report on Form 10-Q for the quarter ended December 31, 1998.
- - Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
- - The description of our common stock which is contained in our Registration
Statement on Form 8-A filed on July 22, 1987, 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 SEC 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.
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<PAGE>
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 our
affairs since the date hereof.
<TABLE>
<CAPTION>
<S> <C> <C>
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
</TABLE>
150,000 Shares
CRITICARE SYSTEMS, INC.
COMMON STOCK
PROSPECTUS
----------
_____________, 1999
8
<PAGE>
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>
<S> <C>
ITEM . . . . . . . . . . . . . . . AMOUNT
- ---------------------------------- -------
Securities and Exchange Commission
Registration Fee . . . . . . . . . $ 86
Nasdaq Listing Fees. . . . . . . . 3,000
Printing and Engraving Fees. . . . 1,000
Legal Fees and Expenses. . . . . . 2,500
Accounting Fees and Expenses . . . 1,000
Miscellaneous Expenses . . . . . . 1,500
-------
Total . . . . . . . . . . . . . $ 9,086
=======
</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
II-1
misconduct or a knowing
violation of law, (iii) for paying a dividend or approving a stock 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).
II-2
9
<PAGE>
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.
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<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-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 2nd day of
August, 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>
<S> <C> <C>
Signature Title Date
- ------------------------------ ------------------------------- -------------
/s/ Emil H. Soika President and Chief Executive August 2, 1999
- ----------------------------- Officer
Emil H. Soika
/s/ Karsten Houm Chairman of the Board and August 2, 1999
- ----------------------------- Director
Karsten Houm
/s/ Joseph M. Siekierski Vice President-Finance and August 2, 1999
- ----------------------------- Secretary (Principal Accounting
Joseph M. Siekierski Officer and Principal Financial
Officer)
/s/ Milton Datsopoulos Director August 2, 1999
- -----------------------------
Milton Datsopoulos
/s/ N.C. Joseph Lai Director August 2, 1999
- -----------------------------
N.C. Joseph Lai
/s/ Gerhard J. Von der Ruhr Director August 2, 1999
- -----------------------------
Gerhard J. Von der Ruhr
</TABLE>
II-4
11
<PAGE>
------
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
<S> <C> <C>
EXHIBIT PAGE
NUMBER. DESCRIPTION NUMBER
- ------- ------------------------------------------------------ ------
5 . . . Opinion of Counsel
23.1. . Consent of Deloitte & Touche LLP, Independent Auditors
</TABLE>
EXHIBIT 5
---------
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 in 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
July 29, 1999
