As filed with the Securities and Exchange Commission on February 11, 2000
Registration No. _______
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CRITICARE SYSTEMS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 74-2765381
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(State of Incorporation) (I.R.S. Employer I.D. No.)
29025 Crossroads Circle
Waukesha, Wisconsin 53186
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(Address of Principal Executive Offices) (Zip Code)
CRITICARE SYSEMS, INC.
EMPLOYEE STOCK PURCHASE PLAN
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(Full title of the plan)
Emil H. Soika
President and Chief Executive Officer
Criticare Systems, Inc.
29025 Crossroads Circle
Waukesha, Wisconsin 53186
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(Name and address of agent for service)
414-798-8282
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(Telephone number, including area code
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered Per Share Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock, $.04 par
value per share. . . . 500,000 (1) $ 2.69 (2) $ 1,345,000 $ 356
- ---------------------- ----------------- ------------------ --------------- -----------------
<FN>
(1) This Registration Statement also covers any additional shares of Common Stock which
become issuable under the Criticare Systems Inc. Employee Stock Purchase Plan by reason of any
stock dividend, stock split, recapitalization or other similar transaction effected without the
Registrant's receipt of consideration which results in an increase in the number of the
outstanding shares of the Registrant's Common Stock.
(2) For the purpose of computing the registration fee, the Registrant has used $2.69 as the
average of the high and low prices of the Common Stock as reported on February 4, 2000 on the
</TABLE>
<PAGE>
PART II - INFORMATION REQUIRED IN THE
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REGISTRATION STATEMENT
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Item 3. Incorporation of Documents by Reference.
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Criticare Systems, Inc. (the "Company") hereby incorporates by reference
the following documents filed with the Securities and Exchange Commission (the
"Commission"):
(a) The Company's Annual Report on Form 10-K for the year ended June
30, 1999, as amended.
(b) All other reports filed by the Company pursuant to sections 13(a)
or 15(d) of the Exchange Act since June 30, 1999.
(c) The description of the Company's Common Stock contained in the
registration statement filed pursuant to section 12 of the Exchange Act and all
amendments thereto or reports filed for the purpose of updating such
description.
All reports and other documents subsequently filed by the Company pursuant
to sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing
of a post-effective amendment which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference herein and to be a part hereof from the
date of filing of such documents.
Item 4. Description of Securities.
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Not applicable.
Item 5. Interests of Named Experts and Counsel.
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Not applicable.
Item 6. Indemnification of Directors and Officers.
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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
2
<PAGE>
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 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 7. Exemption from Registration Claimed.
--------------------------------------
Not applicable.
Item 8. Exhibits.
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5 Opinion of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c. as
to the legality of the stock being registered.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Deloitte & Touche LLP.
23.3 Consent of Reinhart, Boerner, Van Deuren, Norris & Rieselbach, s.c.
(included in its opinion filed as Exhibit 5 hereto).
24 Power of Attorney (included on the signature page hereto).
Item 9. Undertakings.
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1. The undersigned registrant hereby undertakes as follows:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement 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.
(b) That, for 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
<PAGE>
(c) 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.
2. 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 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.
3. 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 such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Waukesha, State of Wisconsin, on February 11, 2000.
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 constitutes and
appoints Emil H. Soika his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution for him or her and in his or
her name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
each said attorney-in-fact and agent 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 or share might or could do
in person, hereby ratifying and confirming all that said attorney-in-fact and
agent or his or her substitute may lawfully do or 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, Chief Executive Officer February 11, 2000
- ---------------------------------- and Director
Emil H. Soika
/s/ Karsten Houm Chairman of the Board and Director February 11, 2000
- ----------------------------------
Karsten Houm
/s/ Joseph M. Siekierski Vice President-Finance and February 11, 2000
- ---------------------------------- Secretary (Principal Accounting
Joseph M. Siekierski Officer and Principal Financial
Officer)
/s/ Milton Datsopoulos Director February 11, 2000
- ----------------------------------
Milton Datsopoulos
/s/ N.C. Joseph Lai Director February 11, 2000
- ----------------------------------
N.C. Joseph Lai
/s/ Gerhard J. Von der Ruhr Director February 11, 2000
- ----------------------------------
Gerhard J. Von der Ruhr
</TABLE>
5
February 11, 2000
Criticare Systems, Inc.
29025 Crossroads Circle
Waukesha, Wisconsin 53186
Gentlemen: Re: Registration Statement on Form S-8
We have acted as counsel for Criticare Systems, Inc., a Delaware
corporation (the "Company"), in connection with the Company's offering to
certain participants of up to 500,000 shares of its $.04 par value common stock
(the "Common Stock") pursuant to the Criticare Systems, Inc. Employee Stock
Purchase Plan (the "Plan").
In such capacity we have examined, among other documents, the Certificate
of Incorporation of the Company, and the Registration Statement on Form S-8 to
be filed by the Company with the Securities and Exchange Commission on or
shortly after the date of this letter covering the offering of the Common Stock
pursuant to the Plan. Based on the foregoing and such additional investigation
as we have deemed necessary, it is our opinion that the shares of Common Stock
to be offered under the Plan have been legally and validly authorized under the
Restated Certificate of Incorporation of the Company and the laws of the State
of Delaware. When issued in accordance with the description set forth in the
Registration Statement and the Plan, the shares of Common Stock will be legally
issued, 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-8.
REINHART, BOERNER, VAN DEUREN,
NORRIS & RIESELBACH, s.c.
BY /s/ Benjamin G. Lombard
--------------------------------
Benjamin G. Lombard
CONSENT OF INDEPENDENT PUBLIC AUDITORS
We consent to the incorporation by reference in this Registration Statement on
Form S-8 pertaining to the Criticare Systems, Inc. Employee Stock Purchase Plan
of our reports dated November 30, 1999 appearing in the Annual Report on Form
10-K of Criticare Systems, Inc. for the year ended June 30, 1999 filed with the
Securities and Exchange Commission.
/s/ BDO Siedman, LLP
Milwaukee, Wisconsin
February 8, 2000
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Criticare Systems, Inc. on Form S-8 of our reports dated August 20, 1998
appearing in the Annual Report on Form 10-K of Criticare Systems, Inc. for the
year ended June 30, 1999.
/s/ Deloitte & Touche LLP
Milwaukee, Wisconsin
February 8, 2000
