<PAGE> 1
As filed with the Securities and Exchange Commission on March 21, 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)
<TABLE>
<S> <C> <C>
Delaware 7371 23-2476415
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
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)
APACHE MEDICAL SYSTEMS, INC. EMPLOYEE STOCK PURCHASE PLAN
(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:
<TABLE>
<S> <C>
Karen A. Erikson, Esq. 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
</TABLE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered (1) Share Price Registration Fee
- ------------------------------------------ -------------- -------------------- -------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share (2) 210,000 $ 6.1875 $ 1,299,375 $ 394
</TABLE>
(1) Together with an indeterminable number of additional securities in order
to adjust the number of securities reserved for issuance pursuant to the
plans 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.
(2) 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 March 19, 1997
with respect to 210,000 shares available for purchase under the Employee
Stock Purchase Plan.
<PAGE> 2
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 in to 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 Company's Current Report on Form 8-K dated February 20, 1997;
and
3. The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated June 4, 1996 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Certificate of Incorporation provides
that the Company shall, subject to certain limitations, indemnify its directors
and officers against expenses (including attorneys' fees, judgments, fines and
certain settlements) actually and reasonably incurred by them in connection
with any suit or proceeding to which they are a party so long as they acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to a criminal action or
proceeding, so long as they had no reasonable cause to believe their conduct to
have been unlawful.
Section 102 of the Delaware General Corporation Law ("DGCL") permits a
Delaware corporation to include in its certificate of incorporation a provision
eliminating or limiting a director's liability to a corporation or its
stockholders for monetary damages for breaches of fiduciary duty. DGCL Section
102 provides, however, that liability for breaches of the duty of loyalty, acts
or omissions not in good faith or involving intentional misconduct, or knowing
violation of the law, and the unlawful purchase or redemption of stock or
payment of unlawful dividends or the receipt of improper personal benefits
cannot be eliminated or limited in this manner. The Company's Amended and
Restated Certificate of Incorporation includes a provision that eliminates, to
the fullest extent permitted, director liability for monetary damages for
breaches of fiduciary duty.
II-1
<PAGE> 3
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. INDEX TO EXHIBITS.
<TABLE>
<CAPTION>
Exhibit Number Description of Document
------------------ -----------------------------------------------------------------------
<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.
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:
(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;
(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 with
or furnished to the Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
II-2
<PAGE> 4
(b) The Registrant hereby undertakes that, for purposes of determining
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 that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to the
securities offering herein, 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 provisions described in Item 6 of
this registration statement, or otherwise, the Registrant has been advised that
in the opinion of the 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 section,
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 the final adjudication of such issue.
II-3
<PAGE> 5
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 21st day of
March 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., Robert E.
Ciri and Brion D. Umidi, 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 21st day of March 1997.
<TABLE>
<CAPTION>
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/ Brion D. Umidi Vice President, Finance and Administration,
---------------------------------- Treasurer and Chief Financial Officer
Brion D. Umidi (Principal Financial and Accounting Officer)
/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
</TABLE>
S-1
<PAGE> 6
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description of Document
- -------------- -----------------------
<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.
E-1
<PAGE> 1
EXHIBIT 5.1
GARDNER, CARTON & DOUGLAS
321 North Clark Street
Suite 3200
Chicago, Illinois 60610
March 21, 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
210,000 shares of Common Stock of the Corporation, par value $.01 per share (the
"Common Stock"), reserved for issuance to eligible employees of the Corporation
pursuant to the Corporation's Employee Stock Purchase Plan (the "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 Common Stock under the Plans 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
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Apache Medical Systems:
We consent to the use of our reports incorporated herein by reference.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Washington, D.C.
March 20, 1997
<PAGE> 2
EXHIBIT 23.1
The Board of Directors
Apache Medical Systems:
We consent to the use of our reports incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Washington, D.C.
March 20, 1997
