As filed with the Securities and Exchange Commission on August 7, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
VITAL SIGNS, INC.
(Exact name of registrant as specified in its charter)
New Jersey 11-2279807
(State or other jurisdiction of (I.R. S. Employer)
incorporation or organization) Identification No.)
20 Campus Road, Totowa, New Jersey 07512
(Address of Principal Executive Offices) (Zip Code)
VITAL SIGNS, INC. 1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Anthony J. Dimun
Vital Signs, Inc.
20 Campus Road
Totowa, New Jersey 07512
201-790-1330
(Name, address and telephone number, including area code,
of agent for service)
with a copy to:
Peter H. Ehrenberg, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered unit (1) price fee
Common Stock,
no par value 300,000 shares(2) $19.875 $5,962,500 $2,057
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(1) Pursuant to Rule 457, the proposed maximum offering price per share is
estimated solely for the purpose of computing the amount of the
registration fee and is based on the average of the high and low sales
prices of the Common Stock of the registrant reported on the National
Market System of the National Association of Securities Dealers Automated
Quotation System on August 6, 1996.
(2) Plus such indeterminate number of additional shares as shall become
issuable pursuant to the anti-dilution provisions of the above-mentioned
Plan.
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<PAGE>
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Vital Signs, Inc. (the "Company")
with the Securities and Exchange Commission (the "SEC"), are hereby incorporated
by reference:
(a) the Company's Annual Report on Form 10-K for the year ended
September 30, 1995;
(b) the Company's Quarterly Reports on Form 10-Q for the periods ended
December 31, 1995 and March 31, 1996; and
(c) the description of the Common Stock of the Company contained in the
Company's most recent registration statement filed under the Securities Exchange
Act of 1934 including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 this registration statement and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this registration statement except
as so modified or superseded.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Subsection (2) of Section 3-5, Title 14A of the New Jersey Business
Corporation Act empowers a corporation to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative,
arbitrative or investigative (other than an action by or in the right of the
corporation), by reason of the fact that he is or was a corporate agent (i.e., a
director, officer, employee or agent of the corporation or a person serving at
the request of the corporation as a director, officer, trustee, employee or
agent of another corporation or enterprise), against reasonable costs (including
attorneys' fees), judgments, fines, penalties and amounts paid in settlement
incurred by him in connection with such action, suit or proceeding if 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
proceeding, had no reasonable cause to believe his conduct was unlawful.
Subsection (3) of Section 3-5 empowers a corporation to indemnify a
corporate agent against reasonable costs (including attorneys' fees) incurred by
him in connection with any proceeding by or in the right of the corporation to
procure a judgment in its favor which involves such corporate agent by reason of
the fact that he is or was a corporate agent if he acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such person shall have been adjudged to be liable
for negligence or misconduct unless and only to the extent that the Superior
Court of New Jersey or the court in which such action or suit was brought shall
determine that despite the adjudication of liability, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
Subsection (4) of Section 3-5 provides that to the extent that a
corporate agent has been successful in the defense of any action, suit or
proceeding referred to in subsections (2) and (3) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) incurred by him in connection therewith.
Subsection (8) of Section 3-5 provides that the indemnification
provisions in the law shall not exclude any other rights to indemnification that
a director or officer may be entitled to under a provision of the certificate of
incorporation, a by-law, an agreement, a vote of shareholders, or otherwise.
That subsection explicitly permits indemnification for liabilities and expenses
incurred in proceedings brought by or in the right of the corporation
(derivative proceedings). The only limit on indemnification of directors and
officers imposed by that subsection is that a corporation may not indemnify a
director or officer if a judgment has established that the director's or
officer's acts or omissions were a breach of his or her duty of loyalty, not in
good faith, involved a knowing violation of the law, or resulted in receipt of
an improper personal benefit.
Subsection (9) of Section 3-5 provides that a corporation is empowered
to purchase and maintain insurance on behalf of a director or officer against
any expenses or liabilities incurred in any proceeding by reason of that person
being or having been a director or officer, whether or not the corporation would
have the power to indemnify that person against expenses and liabilities under
other provisions of the law.
The Registrant's Restated Certificate of Incorporation contains the
following provisions regarding indemnification:
"Every person who is or was a director or officer of the
corporation, or any such person who serves or served in any capacity
with any other enterprise at the request of the corporation, shall be
indemnified by the corporation to the fullest extent permitted by law
against all expenses and liabilities reasonably incurred by or imposed
upon him in connection with any proceeding to which he may be made, or
threatened to be made, a party, or in which he may become involved by
reason of his being or having been a director or officer of the
corporation, or of serving or having served such other enterprise,
whether or not he is a director or officer of the corporation, or
continues to serve such other enterprise, at the time the expenses or
liabilities are incurred."
The Registrant's Restated Certificate of Incorporation contains
the following provisions regarding certain limitations on the liability of
directors and officers:
"A director or an officer of the corporation shall
not be personally liable to the corporation or its shareholders for
monetary damages for breach of fiduciary duty as a director or officer,
except to the extent such exemption from liability or limitation
thereof is not permitted under the New Jersey Business Corporation Act
as presently in effect or as the same may hereafter be amended. No
amendment to or repeal of this Article VI and no amendment, repeal or
termination of effectiveness of any law permitting the exemption from
liability provided for herein shall apply to or have any effect on the
liability or alleged liability of any director or officer for or with
respect to any acts or omissions of that director or officer occurring
prior to the amendment, repeal or termination of effectiveness."
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Registrant's Restated Certificate of Incorporation is incorporated
by reference to Exhibit 3.1 of the Registrant's Annual Report on Form 10-K for
the year ended September 30, 1995.
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
23.1 Consent of Goldstein Golub Kessler & Company, P.C.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. is
included in Exhibit 5.1.
24.1 Power of Attorney
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
Provided, however, that Paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form 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 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or 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 of 1933 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 that 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.
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 Totowa, State of New Jersey, on the 7th day of
August, 1996.
VITAL SIGNS, INC.
By: /s/Anthony J. Dimun
________________________
Anthony J. Dimun
Executive Vice President
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 dates indicated.
Signatures Title Date
/s/Terence D, Wall*
_____________________ President, Chief Executive Officer and August 7, 1996
Terence D. Wall Director
/s/David S. Bershad*
_____________________ Director August 7, 1996
David J. Bershad
/s/Anthony J. Dimun
_____________________ Executive Vice President, Chief Financial August 7, 1996
Anthony J. Dimun Officer, Treasurer and Director (Chief
Financial and Accounting Officer)
/s/Joseph J. Thomas*
_____________________ Director August 7, 1996
Joseph J. Thomas
/s/John Toedtman*
_____________________ Director August 7, 1996
John Toedtman
/s/Barry Wicker*
_____________________ Director August 7, 1996
Barry Wicker
*By: /s/Anthony J. Dimun
__________________________
Anthony J. Dimun
Attorney-in-Fact
EXHIBIT INDEX
Exhibit No. Description Page No.
4.1 Registrant's Restated Certificate of Incorporation
(incorporated by reference)
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
23.1 Consent of Goldstein Golub Kessler & Company, P.C.
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. is
included in Exhibit 5.1
24.1 Power of Attorney
August 7, 1996
Vital Signs, Inc.
20 Campus Road
Totowa, NJ 07512
Gentlemen:
You have requested our opinion in connection with the registration with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
of 300,000 shares of the common stock ("Common Stock") of Vital Signs, Inc.
(the "Company") on a registration statement on Form S-8 (the "Registration
Statement"). The shares of Common Stock to which the Registration Statement
relates are issuable pursuant to the Company's 1996 Employee Stock Purchase Plan
(the "Plan").
We have examined and relied upon originals or copies, authenticated or
certified to our satisfaction, of all such corporate records of the Company,
communications or certifications of public officials, certificates of officers,
directors and representatives of the Company, and such other documents as we
have deemed relevant and necessary as the basis of the opinions expressed
herein. In making such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, and
the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing and relying upon statements of fact contained in
the documents which we have examined, we are of the opinion that the shares of
Common Stock offered by the Company pursuant to the Plan, when paid for in full
by the participants in accordance with the Plan, will be, when issued, legally
issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto.
Very truly yours,
LOWENSTEIN, SANDLER, KOHL,
FISHER & BOYLAN, P.C.
By:/s/Laura R. Kuntz
_________________
Laura R. Kuntz
INDEPENDENT AUDITOR'S CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated November 17, 1995 included in the
Annual Report on Form 10-K of Vital Signs, Inc. for the year ended September 30,
1995.
Goldstein Golub Kessler & Company, P.C.
New York, New York
August 6, 1996
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Vital Signs, Inc. desire
to authorize Terence D. Wall, Anthony J. Dimun and Barry Wicker to act as their
attorneys-in-fact and agents, for the purpose of executing and filing a
registration statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Terence D. Wall, Anthony J. Dimun and Barry
Wicker, and each of them, his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, to sign a Registration Statement
on Form S-8 registering 300,000 shares of the Common Stock of Vital Signs, Inc.
issuable in connection with the Company's Employee Stock Purchase Plan,
including any and all amendments and supplements thereto, 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 in and about the
premises, as fully and 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.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney in
the following capacities on this 30th day of July, 1996.
SIGNATURE TITLE
/s/Terence D. Wall
_____________________ President, Chief Executive Officer and Director
Terence D. Wall
/s/David J. Bershad
_____________________ Director
David J. Bershad
/s/Anthony J. Dimun
_____________________ Executive Vice President, Chief Financial Officer,
Anthony J. Dimun Treasurer and Director (Chief Financial and
Accounting Officer)
/s/Joseph J. Thomas
_____________________ Director
Joseph J. Thomas
/s/John Toedtman
_____________________ Director
John Toedtman
/s/Barry Wicker
_____________________ Executive Vice President and Director
Barry Wicker
