Registration No. 333-23583
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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POST EFFECTIVE AMENDMENT NO. 1
TO
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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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.
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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 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 -- previously filed.
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 -- previously filed.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
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(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;
(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.
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(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 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
Amendment to the 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 20th 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.
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(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 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
/s/ G. Kent Archibald* President, Chief Executive
G. Kent Archibald Officer and Director (principal
executive officer)
/s/ Mark T. Bakko* Chief Financial Officer
Mark T. Bakko (principal financial and
accounting officer)
/s/ Norman Dann* Director
Norman Dann
/s/ Jerry E. Robertson* Director
Jerry E. Robertson
*By /s/ G. Kent Archibald
G. Kent Archibald for himself and as
Attorney-in-Fact pursuant to Power of
Attorney previously filed.
Dated: March 20, 1997
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
MEDWAVE, INC.
Post-Effective Amendment No. 1
to
Form S-8 Registration Statement
(Reg. No. 333-23583)
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--previously filed
23.1 Consent of counsel (See Exhibit 5)
23.2 Consent of independent auditors
24 Power of attorney--previously filed
EXHIBIT 23.2
CONSENT OF ERNST & YOUNG LLP
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 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 19, 1997
