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As filed with the Securities and Exchange Commission on September 25, 1997
Registration No. 333-_______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
APACHE MEDICAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 7371 23-2476415
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
1650 Tysons Boulevard
McLean, Virginia 22102
Telephone: (703) 847-1400
(Address, including zip code, telephone number, including area code, of
registrant's principal executive offices)
AMENDED AND RESTATED EMPLOYEE STOCK OPTION PLAN
OF APACHE MEDICAL SYSTEMS, INC.
(Full title of the plan)
Gerald E. Bisbee, Jr., Ph.D.
Chairman and Chief Executive Officer
APACHE Medical Systems, Inc.
1650 Tysons Boulevard
McLean, Virginia 22102
Telephone: (703) 847-1400
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
Copies to:
Robert J. Sullivan George C. McKann, Esq.
APACHE Medical Systems, Inc. Gardner, Carton & Douglas
1650 Tysons Boulevard 321 North Clark Street, Suite 3200
McLean, Virginia 22102 Chicago, Illinois 60610
CALCULATION OF REGISTRATION FEE
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<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered Share Price Registration Fee
- -------------------------------------- -------------- -------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 500,000 (1)(2) $3.59375 (3) $1,796,875 $545
</TABLE>
(1) Amount represents the number of shares issuable pursuant to the Plan in
addition to the 1,696,589 shares registered on Registration Statement No.
333-23731.
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(2) Together with an indeterminable number of additional securities in order
to adjust the number of securities reserved for issuance pursuant to the
plan as the result of a stock split, stock dividend or similar transaction
affecting the Common Stock, pursuant to 17 C.F.R. Section 230.416.
(3) Estimated in accordance with Rule 457(c) and (h)(1), the proposed maximum
offering price per share, proposed maximum aggregate offering price and
the amount of the registration fee are based upon the average of the high
and low prices reported on the Nasdaq National Market on September 23,
1997 with respect to 500,000 shares available for grant under the Amended
and Restated Employee Stock Option Plan.
INCORPORATION BY REFERENCE OF EARLIER REGISTRATION ON FORM S-8
APACHE Medical Systems, Inc. ("Registrant" or the "Company"), has earlier
filed a registration statement on Form S-8 (Registration Statement No.
333-23731) relating to the Amended and Restated Employee Stock Option Plan of
APACHE Medical Systems, Inc. (the "Earlier Registration Statement"). This
Registration Statement registers additional shares for offering pursuant to
such Plan. Subject to the final paragraph of Item 3 of Part II of this
Registration Statement, the contents of the Earlier Registration Statement are
incorporated herein by reference.
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APACHE MEDICAL SYSTEMS, INC.
REGISTRATION STATEMENT ON FORM S-8
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
There are hereby incorporated by reference into this Registration
Statement the following documents and information heretofore filed with the
Securities and Exchange Commission (the "Commission") by the Registrant:
1. The Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996;
2. The Registrant's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1997;
3. The Registrant's Current Reports on Form 8-K filed January
14, February 20 (as amended on March 28) and June 4, 1997; and
4. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated June 4, 1996
and the description of the Registrant's Preferred Stock Purchase
Rights contained in the Registrant's Registration Statement on form
8-A dated June 4, 1997, each filed pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendment or report filed for the purpose of updating
such description.
In addition, each document filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act after the date hereof, and prior
to the filing of a post-effective amendment which indicates that all securities
offered hereunder have been sold or which deregisters all securities then
remaining unsold under this registration statement, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Any statement contained in this Registration Statement or in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in the original Section 10(a) prospectus (as regards any
statement in any previously filed document incorporated by reference herein),
or a statement in any subsequently filed document that is also incorporated by
reference herein or a statement in any subsequent Section 10(a) prospectus,
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
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ITEM 8. INDEX TO EXHIBITS.
Exhibit Number Description of Document
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<S> <C> <C>
4.1 Amended and Restated Certificate of Incorporation**
4.2 By-laws*
5.1 Opinion of Gardner, Carton & Douglas regarding legality of securities
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Gardner, Carton & Douglas (included in exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
</TABLE>
________________
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (333-4106), initially filed April 26, 1996.
** Incorporated by reference to the Registrant's Report on Form 10-Q for the
quarter ended June 30, 1997.
II-1
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 McLean, State of Virginia, on this 25th day of
September 1997.
APACHE MEDICAL SYSTEMS, INC.
By: /s/ Gerald E. Bisbee, Jr., Ph.D.
------------------------------------
Gerald E. Bisbee, Jr., Ph.D.
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Gerald E. Bisbee, Jr., Ph.D. and Robert
J. Sullivan, 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, execute and file
this Registration Statement and any or all amendments (including, without
limitation, post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto and all documents required to be filed
with respect therewith, with the Securities and Exchange Commission or any
regulatory authority, granting unto such attorneys-in-fact and agents full
power and authority to do and perform each and every act and thing requisite
and necessary to be done in connection therewith and about the premises in
order to effectuate the same as fully to all intents and purposes as he might
or could do if personally present, hereby ratifying and confirming all that
such attorneys-in-fact and agents or his or their substitute or substitutes,
may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on this 25th day of September 1997.
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SIGNATURES TITLE
- ---------- -----
<S> <C>
/s/ Gerald E. Bisbee, Jr., Ph.D. Chairman and Chief Executive Officer
- ---------------------------------- (Principal Executive Officer)
Gerald E. Bisbee, Jr., Ph.D.
/s/ Robert J. Sullivan Vice President, Chief Financial Officer and Treasurer
- ---------------------------------- (Principal Financial and Accounting Officer)
Robert J. Sullivan
/s/ Edward J. Connors Director
- ----------------------------------
Edward J. Connors
/s/ Thomas W. Hodson Director
- ----------------------------------
Thomas W. Hodson
/s/ William A. Knaus, M.D. Director
- ----------------------------------
William A. Knaus, M.D.
/s/ Lawrence S. Lewin Director
- ----------------------------------
Lawrence S. Lewin
/s/ Francis G. Ziegler Director
- ----------------------------------
Francis G. Ziegler
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INDEX TO EXHIBITS
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Exhibit Number Description of Document
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation**
4.2 By-laws*
5.1 Opinion of Gardner, Carton & Douglas regarding legality of securities
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Gardner, Carton & Douglas (included in exhibit 5.1)
24.1 Powers of Attorney (included on signature page)
</TABLE>
_____________
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1 (333-4106), initially filed April 26, 1996.
** Incorporated by reference to the Registrant's Report on Form 10-Q for the
quarter ended June 30, 1997.
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EXHIBIT 5.1
GARDNER, CARTON & DOUGLAS
Suite 3400 - Quaker Tower
321 North Clark Street
Chicago, Illinois 60610-4795
(312) 644-3000
September 25, 1997
APACHE Medical Systems, Inc.
1650 Tysons Boulevard
McLean, Virginia 22102
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to APACHE Medical Systems, Inc., a Delaware
corporation (the "Corporation"), in connection with the filing of a
Registration Statement on Form S-8 by the Corporation under the Securities Act
of 1933, as amended (the "Registration Statement"), which Registration
Statement registers an additional 500,000 shares of Common Stock of the
Corporation, par value $.01 per share (the "Common Stock"), reserved for
issuance under the Corporation's Amended and Restated Employee Stock Option
Plan (the "Option Plan"). In that capacity, we have reviewed the Amended and
Restated Certificate of Incorporation and By-laws of the Corporation, both as
amended to date, the Registration Statement, the Plan, the originals or copies
of corporate records reflecting the corporate action taken by the Corporation
in connection with the approval of the Plan and the issuance of the additional
shares of Common Stock under the Plan, the earlier Registration Statement on
Form S-8 (Registration No. 333-23731) relating to Common Stock reserved for
issuance under the Plan and such other instruments as we have deemed necessary
for the issuance of this opinion.
Based upon the foregoing, we are of the opinion that the Common Stock to
be offered under the Plan has been duly authorized by all requisite action on
the part of the Corporation and, when issued in accordance with the terms and
conditions of the Plan, will be legally issued, fully paid and non-assessable.
We consent to the filing of this opinion as an exhibit to the Registration
Statement. In giving this consent, we do not admit that we are within the
category of persons whose consent is required by Section 7 of the Securities
Act of 1933, as amended.
Very truly yours,
GARDNER, CARTON & DOUGLAS
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EXHIBIT 23.1
To the Board of Directors
APACHE Medical Systems, Inc.:
We consent to the use of our report dated February 7, 1997, incorporated herein
by reference, relating to the consolidated balance sheets of APACHE Medical
Systems, Inc. and subsidiary as of December 31, 1996 and 1995 and the related
consolidated statements of operations, changes in stockholders' equity
(deficit), and cash flows for each of the years in the three year period ended
December 31, 1996, and the related schedule.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
McLean, VA
September 24, 1997
