As filed with the Securities and Exchange Commission on
September 10, 1997.
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
KINETIC CONCEPTS, INC.
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(Exact name of issuer as specified in its charter)
TEXAS 74-2048057
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(State or other jurisdiction of I.R.S. Employer
incorporation or organization) Identification No.)
8023 Vantage Drive, San Antonio, Texas 78230
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(Address of principal executive offices) (Zip Code)
Kinetic Concepts, Inc. 1997 Stock Incentive Plan
------------------------------------------------
(Full title of the plan)
With a copy to:
Raymond R. Hannigan Dennis E. Noll, Esq.
President and Chief Executive Senior Vice President
Officer and General Counsel
KINETIC CONCEPTS, INC. KINETIC CONCEPTS, INC.
8023 Vantage Drive 8023 Vantage Drive
San Antonio, Texas 78230 San Antonio, Texas 78230
(210) 524-9000 (210) 524-9000
- ----------------------------------------------------------------------
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price Fee
- --------------------------------------------------------------------------
Common Stock, 2,500,000 $19.00 $47,500,000 $14,393.94
par value $.001 shares
per share
(1) These 2,500,000 shares of common stock are registered hereby
to be issued in connection with the Plan, plus such indeterminate
number of additional shares of common stock as may be issuable by
reason of the operation of the anti-dilution provisions of the
Plan.
(2) In accordance with Rule 457(h), the Proposed Maximum
Offering Price Per Share is $19.00, which is the closing sale
price reported on the Nasdaq National Market on September 9,
1997, which is the price used solely for the purpose of
calculating the registration fee.
PART II
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and
Exchange Commission (the "Commission") by Kinetic Concepts, Inc.,
a Texas corporation (the "Company" or "Registrant"), are
incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 filed with the Commission on
March 28, 1997.
(b) (1) The Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1997 filed with the Commission
on May 8, 1997.
(b) (2) The Company's Quarterly Report on Form 10-Q for
the quarter ended June 30, 1997 filed with the Commission on
August 14, 1997.
All documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), subsequent to the date
this Registration Statement is filed with the Commission and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be
incorporated by reference in the Registration Statement and to be
a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified
or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any subsequently
filed document which also is, or is deemed to be, incorporated by
reference herein modifies or supersedes such prior statement.
Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Registration Statement, except as indicated herein.
(c) See "Description of Capital Stock" and the sub-caption
"Common Stock" on page 48 of the Company's Form S-3 Registration
Statement No. 33-63957 filed with the Commission on January 24,
1996, and incorporated herein by reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the Common Stock being registered hereby has
been passed upon for the Company by Dennis E. Noll, Esq., Senior
Vice President, General Counsel and Secretary of the Company.
Mr. Noll owns 11,500 shares of the common stock, par value $.001
per share ("Common Stock"), of the Company and holds other
options to acquire an additional 173,700 shares of the Common
Stock under the Company's stock option plans.
Item 6. Indemnification of Directors and Officers.
Article 2.02-1 of the Texas Business Corporation Act (the
"Act") empowers a Texas corporation to indemnify any person who
was, is, or is threatened to be made, a named defendant or
respondent to any threatened, pending or completed action, suit,
or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such action, suit or
proceeding, and any inquiry or investigation that could lead to
such an action, suit or proceeding, because the person is or was
a director of such corporation, and any person who, while serving
as a director of such corporation, was serving at the request of
such corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent or similar functionary of
another corporation or enterprise. This indemnity may include
judgments, penalties (including excise and similar taxes), fines,
settlements and reasonable expenses actually incurred by such
person in connection with such action, suit or proceeding,
provided that he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was
unlawful. Indemnification of a director is not permitted if the
person is found liable for willful and intentional misconduct in
the performance of his duty to the corporation, is found to be
liable on the basis of the receipt of an improper benefit or is
found liable to the corporation. A Texas corporation is also
permitted to indemnify and advance expenses to officers,
employees and agents who are not directors to such extent as may
be provided by its articles of incorporation, bylaws, action of
board of directors, a contract or required by common law. No
indemnification shall be permitted if the person shall have been
found liable for willful or intentional misconduct in the
performance of his duty to the corporation. A Texas corporation
is required to indemnify a director or officer against reasonable
expenses incurred by him in connection with a proceeding in which
he is named as a defendant or respondent because he is or was a
director or officer if he has been wholly successful, on the
merits or otherwise, in defense of the proceeding.
Article VIII of the Bylaws of the Company provides for
indemnification of the directors and officers of the Company to
the fullest extent permitted by law, as now in effect or later
amended. Article VIII, Section I of the Bylaws provides that
expenses incurred by a director or officer in defending a suit or
other similar proceeding will be paid by the Company upon receipt
of an undertaking by or on behalf of the director or officer to
repay such amount if it is ultimately determined that such
director or officer is not entitled to be indemnified by the
Company.
The Company also has provided liability insurance for each
director and officer for certain losses arising from claims or
charges made against them while acting in their capacities as
directors or officers of the Company.
Additionally, Article Seven of the Company's Restated
Articles of Incorporation limits the liability of the Company's
directors under certain circumstances. Article Seven states:
A Director of the Corporation shall not be personally
liable to the Corporation or its shareholders for monetary
damages for an act or omission in the Director's capacity
as a director, except for liability for (a) a breach of
the Director's duty of loyalty to the Corporation or its
shareholders, (b) an act or omission not in good faith or
that involves intentional misconduct or a knowing
violation of the law, (c) a transaction from which the
Director received an improper benefit, whether or not the
benefit resulted from an action taken within the scope of
the Director's office, (d) an act or omission for which
the liability of the Director is expressly provided for by
statute, or (e) an act related to an unlawful stock
repurchase or payment of a dividend.
If the Act hereafter is amended to authorize further
elimination of the liability of directors, then the liability of
a director of the Corporation, in addition to the limitation on
the personal liability provided herein, shall be limited to the
fullest extent permitted by the Act as amended. Any repeal or
modification of this Article Seven by the shareholders of the
Corporation shall be prospective only, and shall not adversely
affect any limitation on the personal liability of a Director at
the time of such repeal or modification.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Securities Act"), 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 Securities Act and is,
therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Articles of Incorporation of the Registrant
(filed as Exhibit 3.2 to the Registrant's Registration Statement
on Form S-1 (Registration No. 33-21353), as amended, and
incorporated herein by reference)
4.2 Restated By-laws of the Registrant (filed as Exhibit
3.3 to the Registrant's Registration Statement on Form S-1
(Registration No. 33-21353), as amended, and incorporated herein
by reference)
5.1 Opinion of Dennis E. Noll, Esq. as to the legality of
the Common Stock being registered is attached hereto as Exhibit
5.1.
23.1 Consent of KPMG Peat Marwick LLP is attached hereto as
Exhibit 23.1.
23.2 Acknowledgment of Ernst & Young LLP is attached hereto
as Exhibit 23.2.
23.3 Consent of Dennis E. Noll, Esq. is included in Exhibit
5.1 filed herewith.
24.1 Powers of Attorney (included on pages 6-7 of this
Registration Statement).
Item 9. Undertakings.
(a) The Registrant undertakes the following:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of this 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 this Registration
Statement;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement.
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) will
not apply if this Registration Statement is on Form S-3 or S-8
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934 (the "Exchange Act") that
are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 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 the 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 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.
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
San Antonio, Texas on September 10, 1997.
KINETIC CONCEPTS, INC.
By: //RAYMOND R. HANNIGAN//
-----------------------
Raymond R. Hannigan
President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS: That each person whose
signature appears hereinbelow constitutes and appoints RAYMOND R.
HANNIGAN and DENNIS E. NOLL, and each of them, his true and
lawful attorneys-in-fact and agents with full power of
substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this
registration statement, and to file the same with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-
in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and
necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents or any of them, or their
or his substitute or substitutes 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 below by the
following persons in the capacities and on the date indicated.
Signature Name and Title Date
----------- --------------- ----
//James R. Leininger, M.D.// Chairman of the Board September 10, 1997
- ----------------------------
James R. Leininger, M.D.
//Raymond R. Hannigan// Director, President September 10, 1997
- --------------------------- and Chief Executive
Raymond R. Hannigan Officer (Principal
Executive Officer)
//Martin J. Landon// Vice President- September 10, 1997
- --------------------------- Accounting and
Martin J. Landon Controller
//Peter A. Leininger, M.D.// Director September 10, 1997
- ----------------------------
Peter A. Leininger, M.D.
//Sam A. Brooks// Director September 10, 1997
- ---------------------------
Sam A. Brooks
//Frank A. Ehmann// Director September 10, 1997
- --------------------------
Frank A. Ehmann
//Bernhard T. Mittemeyer, M.D.// Director September 10, 1997
- -------------------------------
Bernhard T. Mittemeyer, M.D.
//Wendy Lee Gramm, Ph.D.// Director September 10, 1997
- ---------------------------
Wendy Lee Gramm, PhD.
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ------------------- ----
4.1 Restated Articles of Incorporation of *
the Registrant (filed as Exhibit 3.2 to
the Registrant's Registration Statement
on Form S-1 (Registration No. 33-
21353), as amended, and incorporated
herein by reference) *
4.2 Restated By-laws of the Registrant *
(filed as Exhibit 3.3 to the
Registrant's Registration Statement on
Form S-1 (Registration No. 33-21353),
as amended, and incorporated herein by
reference)
5.1 Opinion of Dennis E. Noll, Esq. as to 9-10
the legality of the Common Stock being
registered is attached hereto as
Exhibit 5.1.
23.1 Consent of KPMG Peat Marwick LLP is 11
attached hereto as Exhibit 23.1.
23.2 Acknowledgment of Ernst & Young 12
LLP is attached hereto as Exhibit 23.2.
23.3 Consent of Dennis E. Noll, Esq. is 9-10
included in Exhibit 5.1 filed herewith.
24.1 Powers of Attorney. 6-7
* Not applicable
EXHIBIT 5.1
(210) 524-9000
September 9, 1997
Kinetic Concepts, Inc.
8023 Vantage Drive
San Antonio, Texas 78230
Re: Registration Statement
on Form S-8 for the Kinetic
Concepts, Inc. 1997 Stock
Incentive Plan
Gentlemen:
I have acted as counsel to Kinetic Concepts,
Inc. (the "Company") in connection with the
preparation for filing with the Securities and
Exchange Commission of a Registration Statement on
Form S-8 (the "Registration Statement") under the
Securities Act of 1933, as amended. The
Registration Statement relates to an aggregate of
2,500,000 shares (the "Shares") of common stock, par
value $.001 per share, of the Company ("Common
Stock"). The Shares are issuable pursuant to the Kinetic
Concepts, Inc. 1997 Stock Incentive Plan (the "Plan").
I have examined such corporate records,
documents, instruments and certificates of the
Company as I have deemed necessary, relevant or
appropriate to enable me to render the opinion
expressed herein. In such examination, I have
assumed the genuineness of all signatures and the
authenticity of all documents, instruments, records
and certificates submitted to us as copies or
originals.
Based upon the foregoing, I am of the
opinion that the Shares will have been duly
authorized and legally issued and will constitute
fully paid and nonassessable shares of Common Stock
of the Company when issued in accordance with the
Plan.
I hereby consent to the use of this opinion as
Exhibit 5.1 to the Registration Statement. In
giving this consent, I do not admit that I come
within the category of persons whose consent is
required under Section 7 of the Securities Act
of 1933, as amended, the rules or regulations of
the Securities and Exchange Commission promulgated
thereunder or any similar provisions of any state
securities laws or regulations.
Very truly yours,
/s/ DENNIS E. NOLL
-------------------
Dennis E. Noll, Esq.
Exhibit 23.2
The Board of Directors
Kinetic Concepts, Inc.
We are aware of the incorporation by reference in the
Registration Statement Form S-8 of Kinetic Concepts, Inc. to
be filed September 10, 1997 for the registration of
2,500,000 shares of its common stock of our report dated
April 22, 1997 relating to the unaudited condensed
consolidated interim financial statements of Kinetic
Concepts, Inc. that is included in its Form 10-Q for the
quarter ended March 31, 1997.
/S/ ERNST & YOUNG LLP
______________________
Ernst & Young LLP
San Antonio, Texas
September 5, 1997
Exhibit 23.1
Independent Auditors' Consent
-----------------------------
The Board of Directors
Kinetic Concepts, Inc.
We consent to the incorporation by
reference in this Registration Statement on
Form S-8, pertaining to the Kinetic
Concepts, Inc. 1997 Stock Incentive Plan of
our report dated February 5, 1997 on the
consolidated financial statements of Kinetic
Concepts, Inc. and subsidiaries as of December
31, 1996 and 1995, and for each of the years in
the three-year period ended December 31,
1996 incorporated herein by reference from the
Company's annual report on Form 10-K for year
ended December 31, 1996.
Our reports refer to a change in the method
of applying overhead to inventory in 1994.
/S/ KPMG PEAT MARWICK LLP
__________________________
KPMG Peat Marwick LLP
San Antonio, Texas
September 5, 1997
