As filed with the Securities and Exchange Commission on December 12, 1996
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under The Securities Act of 1933
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PROTOCOL SYSTEMS, INC.
(Exact name of registrant as specified in charter)
Oregon 93-0913130
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
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8500 S.W. Creekside Place, Beaverton, Oregon 97008
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(Address of principal executive offices) (Zip Code)
(503) 526-8500
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(Registrant's phone number, including area code)
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PROTOCOL SYSTEMS, INC.
1987 KEY EMPLOYEES' INCENTIVE STOCK OPTION PLAN
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James B. Moon
President and Chief Executive Officer
Protocol Systems, Inc.
8500 S.W. Creekside Place, Beaverton, Oregon 97008
(503) 526-8500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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With copies to:
Gregory E. Struxness, Esq.
Ater Wynne Hewitt Dodson & Skerritt, LLP
222 S.W. Columbia, Suite 1800
Portland, Oregon 97201
(503) 226-1191
CALCULATION OF REGISTRATION FEE
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Title of Amount Proposed Proposed Amount
Securities to be Maximum Maximum of
Registered Registered Offering Aggregate Registration
Price Per Offering Fee
Share (1) Price (1)
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Common Stock,
par value $.01 34,919 shares $12.50 $436,487.50 $132.27
per share (2)
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(1) Estimated solely for the purpose of calculating the registration
fee.
(2) Including associated Preferred Stock Purchase Rights. Prior to the
occurrence of certain events, the Preferred Stock Purchase Rights
will not be evidenced or traded separately from the Common Stock.
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<PAGE>2
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents are incorporated by reference into this Registration
Statement:
(a) Annual Report on Form 10-K for the year ended December 31,
1995 of Protocol Systems, Inc. (the "Company") filed with the Securities and
Exchange Commission (the "SEC") on April 1, 1995.
(b) Quarterly Report on Form 10-Q of the Company for the quarter
ended March 31, 1996 filed with the SEC on May 3, 1996. Current Report on
Form 8-K of the Company filed with the SEC on June 20, 1996, Current Report on
Form 8-K filed with the SEC on July 25, 1996, Quarterly Report on Form 10-Q
filed with the SEC on August 12, 1996, and Quarterly Report on Form 10-Q filed
with the SEC on November 14, 1996.
(c) Registration Statement on Form 8-A of the Company filed with
the SEC on March 16, 1992.
(d) All documents filed by the Company with the SEC pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
after the date of this Registration Statement and before the date of filing of
a post-effective amendment to this Registration Statement stating that all
securities offered have been sold or deregistering all securities then
remaining unsold.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
As an Oregon corporation the Company is subject to the Oregon Business
Corporation Act (the "OBCA") and the exculpation from liability and
indemnification provisions contained therein. Pursuant to Section 60.047(2)
of the OBCA, Article VI of the Company's Restated Articles of Incorporation
(the "Restated Articles") eliminates the liability of the Company's directors
to the Company or its shareholders, except for any liability related to breach
of the duty of loyalty, actions not in good faith and certain other
liabilities.
Section 60.387 et seq. of the OBCA allows corporations to indemnify
their directors and officers against liability where the director or officer
has acted in good faith and with a reasonable belief that actions taken were
in the best interests of the corporation or at least not adverse to the
corporation's best interests and, if in a criminal proceeding, the individual
had no reasonable cause to believe the conduct in question was unlawful.
Under the OBCA, corporations may not indemnify against liability in connection
with a claim by or in the right of the corporation but may indemnify against
the reasonable expenses associated with such claims. Corporations may not
indemnify against breaches of the duty of loyalty. The OBCA mandates
indemnifications against all reasonable expenses incurred in the successful
defense of any claim made or threatened whether or not such claim was by or in
the right of the corporation. Finally, a court may order indemnification if
<PAGE>3
it determines that the director or officer is fairly and reasonably entitled
to indemnification in view of all the relevant circumstances, whether or not
the director or officer met the good faith and reasonable belief standards of
conduct set forth in the statute.
The OBCA also provides that the statutory indemnification provisions are
not deemed exclusive of any other rights to which directors or officers may be
entitled under a corporation's articles of incorporation or bylaws, any
agreement, general or specific action of the board of directors, vote of
shareholders or otherwise.
The Restated Articles require the Company to indemnify its directors and
officers to the fullest extent not prohibited by law. The Restated Bylaws of
the Company (the "Bylaws") also require the Company to indemnify its directors
and officers to the fullest extent permitted by the OBCA. In addition, the
Bylaws deem that all rights to indemnification under the Bylaws are deemed to
be contractual rights and are to be effective to the same extent as if
provided for in a contract between the Company and the director or officer who
serves in such capacity.
The Company has entered into indemnity agreements with each of its
executive officers and directors. Each agreement provides for indemnification
of the indemnitee to the fullest extent by law.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
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Number Description
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4.1 Fourth Restated Articles of Incorporation of Protocol
Systems, Inc. (incorporated by reference from the
Company's Registration Statement on Form S-1 (File No.
33-45067))
4.2 Restated Bylaws of Protocol Systems, Inc.
(incorporated by reference from the Company's
Registration Statement on Form S-1 (File No. 33-
45067))
4.3 Rights Agreement dated March 20, 1992 between Protocol
Systems, Inc. and First Interstate Bank of Oregon, N.A
(incorporated by reference from the Company's
Registration Statement on Form S-1 (File No. 33-
45067))
5.0 Opinion of Ater Wynne Hewitt Dodson & Skerritt, LLP as
to the legality of the securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson & Skerritt, LLP
(included in legal opinion filed as Exhibit 5.0)
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature page in Part
II of the Registration Statement)
99.0 Protocol Systems, Inc. 1987 Key Employees' Incentive
Stock Option Plan (incorporated by reference from the
Company's Registration Statement on Form S-1 (File No.
33-45067))
<PAGE>4
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 authorized,
in the City of Portland, State of Oregon, on the 11th day of December, 1996.
PROTOCOL SYSTEMS, INC.
By: /s/James B. Moon
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James B. Moon
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints James B. Moon and Craig M. Swanson, and each of them
singly, as 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 the registration statement filed herewith and
any or all amendments to said registration statement (including post-effective
amendments), 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 foregoing, as fully to all intents and
purposes as he or she 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.
Witness our hands on the date set forth below.
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.
[Signatures on following page]
<PAGE>5
Signature Title Date
/s/ James B. Moon
- ------------------------------ Chairman of the Board, 12/11/96
James B. Moon President and Chief
Executive Officer
(Principal Executive
Officer)
/s/ Craig M. Swanson
- ------------------------------ Vice President, Chief 12/11/96
Craig M. Swanson Accounting Officer and
Secretary (Principal
Financial and Accounting
Officer)
/s/ David F. Bolender
- ------------------------------ Director 12/11/96
David F. Bolender
/s/ William New, Jr., M.D.
- ------------------------------ Director 12/11/96
William New, Jr., M.D.
/s/ Ronald S. Newbower
- ------------------------------ Director 12/11/96
Ronald S. Newbower
/s/ Frank E. Samuel, Jr.
- ------------------------------ Director 12/11/96
Frank E. Samuel, Jr.
/s/ Steven E. Wynne
- ------------------------------ Director 12/11/96
Steven E. Wynne
<PAGE>6
INDEX TO EXHIBITS
Exhibit
Number Exhibit
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4.1 Fourth Restated Articles of Incorporation
of Protocol Systems, Inc. (incorporated by
reference from the Company's Registration
Statement on Form S-1 (File No. 33-45067))
4.2 Restated Bylaws of Protocol Systems, Inc.
(incorporated by reference from the
Company's Registration Statement on Form
S-1 (File No. 33-45067))
4.3 Rights Agreement dated March 20, 1992
between Protocol Systems, Inc. and First
Interstate Bank of Oregon, N.A
(incorporated by reference from the
Company's Registration Statement on Form
S-1 (File No. 33-45067))
5.0 Opinion of Ater Wynne Hewitt Dodson &
Skerritt, LLP as to the legality of the
securities being registered
23.1 Consent of Ater Wynne Hewitt Dodson &
Skerritt, LLP (included in legal opinion
filed as Exhibit 5.0)
23.2 Consent of KPMG Peat Marwick LLP
24.0 Powers of Attorney (included in signature
page in Part II of the Registration
Statement)
99.0 Protocol Systems, Inc. 1987 Key Employees'
Incentive Stock Option Plan (incorporated
by reference from the Company's
Registration Statement on Form S-1 (File
No. 33-45067))
ATER WYNNE HEWITT DODSON & SKERRITT, LLP
222 S.W. Columbia, Suite 1800
Portland, Oregon 97201
(503)226-1191 (phone)
(503)226-0079 (fax)
December 11, 1996
Board of Directors
Protocol Systems, Inc.
8500 S.W. Creekside Place
Beaverton, Oregon 97008
Gentlemen:
In connection with the registration of 34,919 shares of common stock,
par value $.01 per share (the "Common Stock"), of Protocol Systems,
Inc., an Oregon corporation (the "Company"), under the Registration
Statement on Form S-8 to be filed with the Securities and Exchange
Commission on December 12, 1996, and the proposed offer and sale of the
Common Stock pursuant to the terms of the Company's 1987 Key Employees'
Incentive Stock Option Plan (the "1987 Plan"), we have examined such
corporate records, certificates of public officials and officers of the
Company and other documents as we have considered necessary or proper
for the purpose of this opinion.
Based on the foregoing and having regard to legal issues which we deem
relevant, it is our opinion that the shares of Common Stock to be
offered pursuant to the 1987 Plan, when such shares have been delivered
against payment therefor as contemplated by the 1987 Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
above-mentioned registration statement.
Very truly yours,
Ater Wynne Hewitt Dodson & Skerritt, LLP
Consent of Independent Certified Public Accountants
The Board of Directors
Protocol Systems, Inc.:
We consent to incorporation by reference in the Registration Statement on Form
S-8 dated December 12, 1996 of Protocol Systems, Inc. of our reports dated
January 25, 1996, except for note 9 to the financial statements, as to which
the date is February 20, 1996, relating to the consolidated balance sheets of
Protocol Systems, Inc. and subsidiaries as of December 31, 1995 and 1994, and
the related consolidated statements of operations, shareholders' equity and
cash flows for each of the years in the three-year period ended December 31,
1995, and all related financial statement schedules, which reports appear in
the December 31, 1995 annual report on Form 10-K of Protocol Systems, Inc.
Our reports refer to changes in the method of accounting for income taxes to
adopt the provisions of the Financial Accounting Standards Board's Statements
of Financial Accounting Standards (SFAS) No. 109, "Accounting for Income
Taxes," and the method of accounting for certain investments in debt and
equity securities to adopt the provisions of Financial Accounting Standards
Board's Statement of Financial Accounting Standards (SFAS) No. 115,
"Accounting for Certain Investments in Debt and Equity Securities."
KPMG PEAT MARWICK LLP
Portland, Oregon
December 12, 1996
