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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 (Primary Standard (I.R.S. Employer
jurisdiction Industrial Identification No.)
of incorporation or Classification
organization) Code Number)
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)
OPTIONS GRANTED PURSUANT TO INDIVIDUAL
NON-QUALIFIED STOCK OPTION AGREEMENT
WITH WILLIAM A. KNAUS, M.D.
(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
<TABLE>
<CAPTION>
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share Aggregate Offering Price Registration Fee
---------------- ---------- ------------------------ ------------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share 10,490 (1) $6.375 (2) $66,874 $100
</TABLE>
(1) 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.
(2) In accordance with Rule 457(h), represents the exercise price of $6.375
per share for the options outstanding pursuant to the Non-qualified Stock
Option Agreement.
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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.
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.
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.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Certain unregistered securities were issued by the Company pursuant to
the Plan prior to the effective date of this Registration Statement. Such
securities were issued in reliance upon an exemption from registration provided
by Rule 701 promulgated under the Securities Act or by Section 4(2) of the
Securities Act. All such securities were issued to persons who were at such
time employees or consultants of the Company and who were in possession of
sufficient information to make an informed investment decision.
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.
** Incorporated by reference to the Registrant's Report on Form 10-Q for the
quarter ended June 30, 1997.
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;
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(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.
(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.
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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.
<TABLE>
<CAPTION>
SIGNATURES TITLE
- ---------- -----
<S> <C>
/s/ Gerald E. Bisbee, Jr., Ph.D.
- ---------------------------------- Chairman and Chief Executive Officer
Gerald E. Bisbee, Jr., Ph.D. (Principal Executive Officer)
/s/ Robert J. Sullivan
- ---------------------------------- Vice President, Chief Financial Officer and Treasurer
Robert J. Sullivan (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>
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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>
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* 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 10,490 shares of Common Stock of the Corporation, par
value $.01 per share (the "Common Stock"), reserved for issuance under an
individual Non-Qualified Stock Option Agreement between the Company and William
A. Knaus, M.D. dated May 29, 1997 (the "Option Agreement"). 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 Option Agreement, the originals or copies of corporate records
reflecting the corporate action taken by the Corporation in connection with the
approval of the Option Agreement and the issuance of the shares of Common Stock
under the Option Agreement 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 Option Agreement 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 Option Agreement, 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
