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As filed with the Securities and Exchange Commission on October 8, 1999
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Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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APACHE MEDICAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
Delaware 23-2476415
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(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
</TABLE>
1650 Tysons Boulevard, Suite 300
McLean, VA 22102
(703) 847-1400
(Address of Principal Executive Offices)
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NON-EMPLOYEE DIRECTOR SUPPLEMENTAL STOCK OPTION PLAN
OF APACHE MEDICAL SYSTEMS, INC.
(Full Title of the Plan)
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Peter Gladkin
President and Chief Executive Officer
1650 Tysons Boulevard, Suite 300
McLean, VA 22102
(Name and Address of Agent for Service)
(703) 847-1400
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(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Daniel J. Ramos, Esq.
Shaw Pittman
2300 N Street, N.W.
Washington, D.C. 20037
(202) 663-8000
CALCULATION OF REGISTRATION FEE
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<CAPTION>
Proposed Maximum Proposed Maximum Amount Of
Title Of Securities To Be Amount To Be Aggregate Offering Aggregate Offering Registration
Registered Registered Price Per Share Price Fee
- -------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 120,000(1) $1.297(2) $155,640(2) $44
$.01 par value
per share
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) THIS REGISTRATION STATEMENT SHALL ALSO COVER ANY ADDITIONAL SHARES OF
COMMON STOCK WHICH BECOME ISSUABLE UNDER THE NON-EMPLOYEE DIRECTOR
SUPPLEMENTAL STOCK OPTION PLAN OF APACHE MEDICAL SYSTEMS, INC. BY
REASON OF ANY STOCK DIVIDEND, STOCK SPLIT, RECAPITALIZATION OR OTHER
SIMILAR TRANSACTIONS IN ACCORDANCE WITH RULE 416 UNDER THE SECURITIES
ACT OF 1933, AS AMENDED.
(2) ESTIMATED SOLELY FOR THE PURPOSE OF CALCULATING THE REGISTRATION FEE
PURSUANT TO RULE 457(h) UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
BASED UPON THE AVERAGE HIGH AND LOW PRICES OF THE COMMON STOCK AS
REPORTED ON THE NASDAQ STOCK MARKET AS OF OCTOBER 6, 1999.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
- ----------------------
* Information required in Part I of Form S-8 to be contained in a
prospectus meeting the requirements of Section 10(a) of the
Securities Act of 1933 is omitted from this Registration Statement in
accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by APACHE Medical Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated herein by this reference and made a part hereof:
(a) Annual Report on Form 10-K for the year ended December 31, 1998.
(b) Proxy Statement in connection with the Registrant's 1999 Annual
Meeting of Stockholders.
(c) Quarterly Report on Form 10-Q for the fiscal quarter ended March
31, 1999.
(d) Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1999.
(e) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A filed with
the Commission on June 4, 1996, to register the Common Stock of
the Registrant under Section 12(g) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), including any
amendment or report filed for the purposes of updating such
description.
In addition, all documents 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 to this Registration
Statement which indicates that all securities offered have been sold or which
de-registers all securities then remaining unsold, shall be deemed to be
incorporated by reference herein 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.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") empowers a Delaware corporation to indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of such corporation or is or was serving at the request of such
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. Such indemnification may
include expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such action, suit or proceeding, provided that such person acted in good faith
and in a manner such person reasonably believed to be in or not opposed to the
best interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe such person's conduct was
unlawful. A Delaware corporation is permitted to indemnify directors, officers,
employees and other agents of such corporation in an action by or in the right
of the corporation under the same conditions, except that no indemnification is
permitted without judicial approval if the person to be indemnified has been
adjudged to be liable to the corporation. Where a director, officer, employee or
agent of the corporation is successful on the merits or otherwise in the defense
of any action, suit or proceeding referred to above or in defense of any claim,
issue or matter therein, the corporation must indemnify such person against the
expenses (including attorneys' fees) which he or she actually and reasonably
incurred in connection therewith.
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The Registrant's Amended and Restated Certificate of Incorporation
provides that the Registrant 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 Registrant, 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 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 Registrant'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.
Not applicable.
ITEM 8. EXHIBITS.
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Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Report on Form 10-Q
for the quarter ended June 30, 1997 (File No. 0-20805)).
4.2 Bylaws of the Registrant, as amended (incorporated by reference to
the Registrant's Registration Statement on Form S-1 (File No.
333-04106)).
4.3 Specimen common stock certificate (incorporated by reference to the
Registrant's Registration Statement on Form S-1 (File No.
333-04106)).
5.1 Form of opinion of Shaw Pittman as to the legality of the securities
being registered (filed herewith).
23.1 Consent of Shaw Pittman (filed herewith as part of Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (filed herewith).
23.3 Consent of Arthur Andersen, LLP (filed herewith).
23.4 Consent of KPMG LLP (filed herewith).
24.1 Powers of Attorney (included on signature page).
99.1 Non-Employee Director Supplemental Stock Option Plan of the
Registrant (incorporated by reference to Exhibit 10.27 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 (File No. 0-20805)).
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ITEM 9. UNDERTAKINGS.
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(a) 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 there) which, individually
or 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 statements.
(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 securities which
remain unsold at the termination of the offering.
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(b) Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the registrant's
annual report filed pursuant to Section 13(a) or 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.
(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 the final adjudication of such issue.
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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 duly
authorized, in McLean, Virginia, on this 8th day of October, 1999.
APACHE MEDICAL SYSTEMS, INC.
(Registrant)
/s/ PETER GLADKIN
-------------------------
Peter Gladkin
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Peter Gladkin and Karen C. Miller, each acting
individually, his true and lawful attorney-in-fact and agent, with full power of
substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this 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
attorney-in-fact and agent 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 he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
and on the date indicated.
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<CAPTION>
Name Title Date
- ---- ----- ----
<S> <C> <C>
President and Chief Executive
/s/ Peter Gladkin Officer (Principal Executive October 8, 1999
- ------------------------------------ Officer)
Peter Gladkin
Vice President, Finance and
/s/ Karen C. Miller Chief Financial Officer October 8, 1999
- ------------------------------------ (Principal Financial and
Karen C. Miller Accounting Officer)
/s/ Gerald E. Bisbee, Jr., Ph.D. Director October 8, 1999
- ------------------------------------
Gerald E. Bisbee
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<TABLE>
<S> <C> <C>
/s/ Edward J. Connors Director October 8, 1999
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Edward J. Connors
/s/ Richard Dessimoz Director October 8, 1999
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Richard Dessimoz
/s/ .Thomas W. Hodson Director October 8, 1999
- ------------------------------------
Thomas W. Hodson
/s/ William A. Knaus, M.D.
- ------------------------------------ Director October 8, 1999
William A. Knaus, M.D.
/s/ Lawrence S. Lewin Director October 8, 1999
- ------------------------------------
Lawrence S. Lewin
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EXHIBIT INDEX
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<CAPTION>
Exhibit
Number Description of Exhibit
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<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant
(incorporated by reference to the Registrant's Report on Form 10-Q
for the quarter ended June 30, 1997 (File No. 0-20805)).
4.2 Bylaws of the Registrant, as amended (incorporated by reference to
the Registrant's Registration Statement on Form S-1
(File No. 333-04106)).
4.3 Specimen common stock certificate (incorporated by reference to the
Registrant's Registration Statement on Form S-1 (File No.
333-04106)).
5.1 Form of opinion of Shaw Pittman as to the legality of the securities
being registered (filed herewith).
23.1 Consent of Shaw Pittman (filed herewith as part of Exhibit 5.1).
23.2 Consent of Ernst & Young LLP (filed herewith).
23.3 Consent of Arthur Andersen, LLP (filed herewith).
23.4 Consent of KPMG LLP (filed herewith).
24.1 Powers of Attorney (included on signature page).
99.1 Non-Employee Director Supplemental Stock Option Plan of the
Registrant (incorporated by reference to Exhibit 10.27 to the
Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999 (File No. 0-20805)).
</TABLE>
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EXHIBIT 5.1
[SHAW PITTMAN LETTERHEAD]
October 8, 1999
APACHE Medical Systems, Inc.
1650 Tysons Boulevard
McLean, Virginia 22102
RE: APACHE MEDICAL SYSTEMS, INC. REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to APACHE Medical Systems, Inc., a Delaware
corporation (the "Company"), in connection with the registration of 120,000
shares (the "Shares") of common stock, $0.01 par value, of the Company under the
Non-Employee Director Supplemental Stock Option Plan of APACHE Medical Systems,
Inc. (the "Plan"), pursuant to a Registration Statement on Form S-8 under the
Securities Act of 1933, as amended (the "Registration Statement").
We have examined such documents and instruments as we determined to
be necessary in order to render our opinion.
Based on the foregoing and subject to the following limitations, we
are of the opinion that, upon issuance and delivery of the Shares in accordance
with the Plan referred to in the Registration Statement, the Shares will be
validly issued, fully paid and nonassessable.
The foregoing opinion is, with your concurrence, predicated upon and
qualified by the following:
a. The foregoing opinion is based upon and limited to the
Delaware General Corporation Law, and we render no opinion with respect to any
other law or the laws of any other jurisdiction.
b. Our opinion letter is based upon and limited to laws and
regulations as in effect on the date of this letter. We assume no obligation to
update the opinions set forth herein.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ SHAW PITTMAN
SHAW PITTMAN
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8 No. 333- ) pertaining to the Non-Employee Director Supplemental Stock Option
Plan of APACHE Medical Systems, Inc. of our report dated February 19, 1999, with
respect to the consolidated financial statements of APACHE Medical Systems, Inc.
incorporated by reference in its Annual Report (Form 10-K) for the year ended
December 31, 1998, filed with the Securities and Exchange Commission.
/S/ ERNST & YOUNG LLP
Vienna, Virginia
October 8, 1999
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EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our reports dated
February 19, 1998 and March 27, 1998 included in APACHE Medical Systems, Inc.'s
Form 10-K for the year ended December 31, 1998.
Vienna, Virginia
October 5, 1999 /s/ ARTHUR ANDERSEN, LLP
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EXHIBIT 23.4
INDEPENDENT AUDITORS' CONSENT
The Board of Directors
APACHE Medical Systems, Inc.
We consent to the incorporation by reference in this registration statement on
Form S-8 of APACHE Medical Systems, Inc. of our report dated February 7, 1997,
relating to the consolidated statements of operations, changes in stockholders'
equity (deficit), and cash flows of APACHE Medical Systems, Inc. and
subsidiary, and the related schedule for the year ended December 31, 1996,
before the restatement described in Note 2 to the consolidated financial
statements, which report appears in the December 31, 1998, annual report on
Form 10-K of APACHE Medical Systems, Inc.
/s/ KPMG LLP
October 8, 1999
McLean, VA
