SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
Medwave, Inc.
(Exact Name of Registrant as Specified in its Charter)
Minnesota 41-1493458
(State or Other Juris- (I.R.S. Employer
diction of Incorporation Identification Number)
or Organization)
4382 Round Lake Road West
Arden Hills, Minnesota 55112-3923
(Address of Principal Executive Office and Zip Code)
Medwave, Inc. Amended and Restated Stock Option Plan
(Full Title of the Plan)
G. Kent Archibald, President
Medwave, Inc.
4382 Round Lake Road West
Arden Hills, Minnesota 55112-3923
(612) 639-1227
(Name, Address and Telephone Number, Including Area Code, of Agent for Service)
Copies to:
David C. Grorud
Fredrikson & Byron, P.A.
1100 International Centre
Minneapolis, Minnesota 55402
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
================================================================================================================================
Proposed
Proposed Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered(1) Per Share(2) Offering Price(2) Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Options to Purchase
Common Stock under
the Plan Indefinite $ 0.00 $ 0.00 $ 0.00
Common Stock
issuable upon
exercise of options
granted under the
Plan 1,396,200 shares $11.00 $15,358,200 $4,654
------
TOTAL: $4,654
================================================================================================================================
</TABLE>
(1) In addition, pursuant to Rule 416 under the Securities Act of 1933,
this Registration Statement also covers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein and any additional securities which may become
issuable pursuant to anti-dilution provisions of the plan.
(2) Estimated pursuant to Rule 457(h) solely for the purpose of calculating
the registration fee and based upon the market price of the
Registrant's Common Stock on March 11, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Registrant hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The Registrant's latest annual report filed pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act
of 1934, or either (I) the latest prospectus filed
pursuant to Rule 424(b) under the Securities Act of
1933 that contains audited financial statements for the
Registrant's latest fiscal year for which such
statements have been filed or (II) the Registrant's
effective registration statement on Form 10 or 10-SB
filed under the Securities Exchange Act of 1934
containing audited financial statements for the
Registrant's latest fiscal year;
(b) All other reports filed pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 since the
end of the fiscal year covered by the Registrant
document referred to in (a) above;
(c) If the class of securities to be offered is registered
under Section 12 of the Securities Exchange Act of
1934, the description of such class of securities
contained in a registration statement filed under such
Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant 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 such 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.
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Minnesota corporate law, a corporation shall, unless prohibited or
limited by its Articles of Incorporation or Bylaws, indemnify its directors,
officers, employees and
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agents against judgments, penalties, fines, settlements, expenses and
disbursements incurred by such person who was, or is threatened to be, made a
party to a proceeding by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation if generally, with
respect to the acts or omissions of the person complained of in the proceeding,
the person: (i) has not been indemnified by another organization with respect to
the same acts or omissions; (ii) acted in good faith, (iii) received no improper
personal benefit; (iv) in the case of a criminal proceeding, had no reasonable
cause to believe the conduct was unlawful; and (v) reasonably believed the
conduct was in the best interests of the corporation or, in certain
circumstances, reasonably believed that the conduct was not opposed to the best
interests of the corporation. Minnesota corporate law also provides that a
corporation may purchase and maintain insurance on behalf of any indemnified
party against any liability asserted against such person, whether or not the
corporation would have been required to indemnify the person against liability
under the provisions of Minnesota corporate law. The Registrant's Articles of
Incorporation and Bylaws do not limit the Registrant's obligation to indemnify
such persons.
The Registrant's Articles of Incorporation limit the liability of its
directors to the full extent permitted by the Minnesota Business Corporation
Act. Specifically, directors of the Registrant will not be personally liable for
monetary damages for breach of fiduciary duty as directors except liability for
(i) any breach of the duty of loyalty to the Registrant or its shareholders,
(ii) acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) dividends or other distributions of
corporate assets that are in contravention of certain statutory or contractual
restrictions, (iv) violations of certain Minnesota securities laws or (v) any
transaction from which the director derives an improper personal benefit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
5 Opinion and Consent of Fredrikson & Byron, P.A. relating to
the legality of securities under the Amended and Restated
Stock Option Plan.
23.1 Consent of Fredrikson & Byron, P.A. -- included in their
opinion filed as Exhibit 5.
23.2 Consent of Ernst & Young LLP.
24 Power of Attorney from certain directors.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to
this Registration Statement:
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(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,
represents a fundamental change in the
information set forth in the Registration
Statement;
(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 (a)(1)(i)
and (a)(1)(ii) do 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
Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference
in the 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.
(b) 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 (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.
(c) 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
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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 final adjudication of such issue.
SIGNATURES
The Registrant. 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 Arden Hills and State of Minnesota, on the 13th
day of March , 1997.
MEDWAVE, INC.
(the "Registrant")
By /s/ G. Kent Archibald
G. Kent Archibald
President and Chief Executive Officer
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.
(Power of Attorney)
Each of the undersigned constitutes and appoints G. Kent Archibald and Mark
T. Bakko his true and lawful attorney-in-fact and agent, each acting alone, with
full powers of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Form S-8 Registration
Statement of Medwave, Inc. relating to the Company's Amended and Restated Stock
Option Plan and any or all amendments or post-effective amendments to the Form
S-8 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, each acting alone,
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 the undersigned might or could do in person, hereby
ratifying and
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confirming all that said attorneys-in-fact and agents, each acting alone, or
their substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Signature Title Date
/s/ G. Kent Archibald President, Chief Executive February 17, 1997
- --------------------- Officer and Director (principal
G. Kent Archibald executive officer)
/s/ Mark T. Bakko Chief Financial Officer March 13, 1997
- --------------------- (principal financial and
Mark T. Bakko accounting officer)
/s/ Norman Dann Director March 13, 1997
- ---------------------
Norman Dann
/s/ Jerry E. Robertson Director February 18, 1997
- ----------------------
Jerry E. Robertson
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
MEDWAVE, INC.
Form S-8 Registration Statement
E X H I B I T I N D E X
Exhibit
Number Exhibit Description
5 Opinion and Consent of counsel re securities under the Plan
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent auditors
24 Power of attorney
EXHIBIT 5
FREDRIKSON & BYRON, P.A.
900 Second Avenue South, Suite 1100
Minneapolis, Minnesota 55402
Telephone: (612) 347-7000
Facsimile: (612) 347-7077
March 13, 1997
Medwave, Inc.
4382 Round Lake Road W.
Arden Hills, Minnesota 55112-3923
Re: Registration Statement on Form S-8
Ladies/Gentlemen:
We are acting as corporate counsel to Medwave, Inc. (the "Company") in
connection with the original registration by the Company on Form S-8 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Act") of options and 1,396,200 shares (the "Shares") of Common Stock issuable
pursuant to the Company's Amended and Restated Stock Option Plan (the "Plan").
In acting as such counsel and for the purpose of rendering this opinion, we
have reviewed copies of the following, as presented to us by the Company:
1. The Company's Articles of Incorporation, as amended.
2. The Company's Bylaws, as amended.
3. Certain corporate resolutions adopted by the Board of
Directors and shareholders of the Company pertaining to the
adoption and approval of the Plan.
4. The Plan.
5. The Registration Statement.
Based on, and subject to, the foregoing and upon representations and
information provided by the Company or its officers or directors, it is our
opinion as of this date that:
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1. The Shares are validly authorized by the Company's Articles
of Incorporation, as amended.
2. Upon issuance and delivery of the Shares against receipt by
the Company of the consideration for the Shares pursuant to
the terms of the Plan, the Shares will be validly issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
FREDRIKSON & BYRON, P.A.
By /s/ David C. Grorud
David C. Grorud
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
Form S-8 pertaining to the Medwave, Inc. Amended and Restated Stock Option Plan
of our report dated June 28, 1996 with respect to the financial statements and
schedule of Medwave, Inc. included in the Annual Report (Form 10-KSB) for the
year ended April 30, 1996, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Minneapolis, Minnesota
March 11, 1997
