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As filed with the Securities and Exchange Commission on November 16, 1999
REGISTRATION STATEMENT NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ZOLL MEDICAL CORPORATION
(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-2711626
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
32 SECOND AVENUE
BURLINGTON, MA 01803
(781) 229-0020
(Address, including zip code, and telephone number, including area code of
Registrant's principal executive offices)
RICHARD A. PACKER
CHIEF EXECUTIVE OFFICER AND PRESIDENT
ZOLL MEDICAL CORPORATION
32 SECOND AVENUE
BURLINGTON, MA 01803
(781) 229-0020
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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Copy to:
RAYMOND C. ZEMLIN, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is used to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the Prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===============================================================================================================
Proposed Maximum Proposed Maximum
Amount to be Offering Price Per Aggregate Offering Amount of
Title of Shares Being Registered Registered Share(1) Price(1) Registration Fee
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.02
per share 218,059 $38.00 $8,286,242 $2,304
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</TABLE>
(1) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(c) based on the average of the high and low sales prices on the
Nasdaq National Market on November 9, 1999.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION NOVEMBER 16, 1999
218,059 SHARES
ZOLL MEDICAL CORPORATION
COMMON STOCK
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The selling shareholders identified in this prospectus may offer to
sell up to an aggregate of 218,059 shares of common stock of Zoll Medical
Corporation. We will not receive any of the proceeds from the sale of the shares
by the selling shareholders, but we have agreed to bear the expenses of
registering such shares.
Our shares of common stock are listed on the Nasdaq National Market
under the symbol "ZOLL".
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INVESTING IN OUR SHARES OF COMMON STOCK INVOLVES RISK. IN CONSIDERING
WHETHER TO INVEST, YOU SHOULD CAREFULLY CONSIDER THE MATTERS DISCUSSED UNDER
"RISK FACTORS" BEGINNING ON PAGE 3 OF THIS PROSPECTUS.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES, OR DETERMINED IF
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this prospectus is , 1999.
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PROSPECTUS SUMMARY
This summary only highlights the more detailed information appearing
elsewhere in this prospectus or incorporated herein by reference. As this is a
summary, it may not contain all information that is important to you. You should
read this entire prospectus carefully before deciding whether to invest in our
shares of common stock.
Unless the context otherwise requires, all references to "we," "us" or
"our company" in this prospectus refer collectively to Zoll Medical Corporation,
a Massachusetts corporation, its subsidiaries, and their respective predecessor
entities for the applicable periods, considered as a single enterprise.
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ZOLL MEDICAL CORPORATION
- We were incorporated in Massachusetts in 1980. We design,
manufacture and market an integrated line of proprietary,
non-invasive cardiac resuscitation devices, external
pacemaker/defibrillators, disposable electrodes, mobile ECG Systems,
and Emergency Medical Systems ("EMS") data management products. Our
product line includes combination pacemaker/defibrillators,
stand-alone pacemakers and defibrillators and disposable
multi-function electrodes that permit cardiac monitoring, pacing and
defibrillation through a single pair of electrodes. We also produce
and sell software and associated hardware for data collection and
management in the EMS market.
- The principal markets for cardiac resuscitation equipment are
hospitals and pre-hospital care providers such as paramedics,
ambulance operators, emergency medical technicians, firefighters and
other "first response" emergency personnel and the so called "public
access" care providers including police and security officers. We
also sell data management products primarily to the pre-hospital
market.
- Our executive offices are located at 32 Second Avenue in Burlington,
Massachusetts 01803 and our telephone number is (781) 229-0020.
THE OFFERING
This prospectus relates to up to 218,059 shares of common stock that may
be offered for sale by the selling shareholders. We are registering the shares
of common stock covered by this prospectus in order to fulfill our contractual
obligations under a registration rights agreement. We have agreed to bear the
expenses of the registration of the shares of common stock under federal and
state securities laws, but we will not receive any proceeds from the sale of any
shares of common stock offered under this prospectus.
The selling shareholders may sell these securities directly to purchasers
or they may sell these securities to purchasers through agents or dealers
pursuant to this prospectus. The selling shareholders will receive all of the
proceeds from the sale of their securities and will pay all selling commissions
and transfer taxes applicable to any sale. Registration of these securities does
not necessarily mean that any selling shareholder will actually sell their
securities.
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RISK FACTORS
Before you invest in our shares of common stock, you should be aware
that there are various risks of doing so, including those described below. You
should consider carefully these risk factors together with all of the
information included or incorporated by reference in this prospectus before you
decide to purchase shares of our common stock. This section includes or refers
to certain forward-looking statements. You should refer to the explanation of
the qualifications and limitations on forward-looking statements discussed on
pages 2 and 13.
NEW PRODUCTS MAY NOT BE ACCEPTED BY OUR CUSTOMERS. Our financial
performance will depend in part upon market acceptance of, and our ability to
deliver and support, our new products such as the M Series defibrillators and
our proprietary bi-phasic technology. There can be no assurance that we will be
successful in gaining market acceptance of these products or that we will be
able to develop and introduce other new products in a timely manner, that such
new products will gain market acceptance, that new product technologies can be
successfully implemented or that we will have adequate financial or technical
resources for future product development and promotion.
THE MARKET FOR OUR PRODUCTS IS HIGHLY COMPETITIVE. The domestic and
international markets for our products are highly competitive. Some of our
competitors have significantly greater financial, technical, research and
development and marketing resources than we do.
Our principal competitors in the United States are Physio-Control
Corporation ("Physio"), a subsidiary of Medtronic Inc., and Hewlett-Packard
Co.'s medical division. Physio and Hewlett- Packard are the only competitors
that compete across our entire defibrillator product line. Physio has been for
over two decades and continues to be the market leader in the defibrillator
industry. Physio has a broader line of product offerings and accessories than we
do. In addition, Physio and its parent have significantly greater resources than
we do. As a result, there can be no assurance that Physio, Hewlett-Packard and
other competitors will not substantially increase the resources they devote to
the development and marketing of products competitive with ours. Moreover,
competitors may develop and successfully commercialize medical devices that
directly or indirectly accomplish what our products are designed to accomplish
in a superior and/or less expensive manner. As a consequence, such competing
medical devices may render our products obsolete. In addition to defibrillation
and external pacing, there are other alternative therapeutic approaches to the
treatment of sudden cardiac arrest. Moreover, there can be no assurance that
superior pacing or defibrillation technologies will not be developed or that
these alternative therapies or approaches, including pharmaceutical or other
alternatives, will not prove to be superior to our products. There can be no
assurance that we will be able to compete successfully in the future against
existing or potential competitors or that our operating results will not be
adversely affected by increased price competition.
Competition in the business of developing and marketing software for
data collection, billing and management in the EMS market is intense. Our
principal competitors in this business are Tritech Software Systems, Inc.,
Sweet Computer Services, Inc., RAM Software Systems, Inc. and AmbPac, Inc.,
some of which have significantly greater financial, technical, research and
development and marketing resources than we do. Moreover, the barriers to entry
in this business are relatively low, so additional competitors may enter this
market in the future. Many potential customers currently use manual systems
instead of automated systems and no automated platform has become the market
standard. It is possible that customers will continue to use manual systems or
that systems based on DOS or Unix will prevail over our Windows based system.
In either eventuality, our ability to sell our Windows based system would be
impacted and our financial results would be materially and adversely impacted.
WE CAN BE SUED FOR PRODUCING DEFECTIVE PRODUCTS. The manufacture and
sale of medical products entail significant risk of product liability claims.
While we believe that the amount of product liability insurance we maintain is
adequate, there can be no assurance that the amount of such
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insurance will be sufficient to satisfy claims made against us in the future or
that we will be able to maintain insurance in the future at satisfactory rates
or in adequate amounts. Product liability claims could result in costs or
litigation and could have a material adverse effect on our business, financial
condition and results of operations. A successful claim brought against us in
excess of available insurance coverage, or any claim that results in significant
adverse publicity against us could have a material adverse effect on our
business, financial condition and results of operations.
WE MAY BE REQUIRED TO IMPLEMENT A COSTLY PRODUCT RECALL. In the event
that any of our products prove to be defective, the FDA could require us to
redesign or implement a recall of any of our products. Such a recall could
result in significant costs to our company and significant adverse publicity
which could harm our ability to market our products in the future. Though it is
not possible to quantify the economic impact of a recall, it could have a
material adverse effect on our business, financial condition and results of
operations.
GOVERNMENT REGULATION INCREASES COSTS AND MAY CHANGE. The manufacture
and sale of our products is subject to regulation by numerous governmental
authorities, principally the United States Food and Drug Administration (the
"FDA") and corresponding state and foreign agencies. The FDA administers the
Federal Food, Drug and Cosmetic Act, as amended (the "FDA Act").
Under the FDA Act, products we develop in the future will generally
require FDA clearance pursuant to the Section 510(k) notification process or the
more lengthy pre-market approval ("PMA") process. The process of obtaining FDA
approvals is lengthy, expensive and uncertain. Moreover, approvals, if granted,
may limit the uses for which a product may be marketed. In addition, no
assurance can be given that future changes in the FDA Act or the FDA's
regulations will not have an adverse effect on any FDA clearance previously
received with respect to our products.
Every company that manufactures or assembles medical devices is required
to register with the FDA and to adhere to certain "good manufacturing practices"
which regulate the manufacture of medical devices and prescribe record keeping
procedures and provide for the routine inspection of facilities for compliance
with such regulations. The FDA also has broad regulatory powers in the areas of
clinical testing, marketing and advertising of medical devices. Failure to
comply with FDA regulations could result in sanctions being imposed on us,
including restrictions on the marketing or recall of our products.
Our products have been classified by the FDA as Class II devices
(contain no advisory functions), and as Class III devices (contain advisory
functions, e.g. automated external defibrillators). These devices must secure
either a 510(k) pre-market notification clearance or an approved Pre-Market
Approval Application ("PMA") before they can be introduced into the United
States market. The process of obtaining 510(k) clearance typically takes several
months and involves the submission of limited clinical data supporting
assertions that the product is substantially equivalent to another medical
device on the market prior to 1976. The PMA process typically requires
substantially more time than does 510(k) clearance and requires the submission
of significant quantities of clinical data and supporting information. Delays in
obtaining either 510(k) or if necessary, PMA clearance could have an adverse
effect on the introduction of future products.
Medical device manufacturers are routinely subject to periodic
inspections by the FDA. If the FDA believes that a company may not be operating
in compliance with applicable laws and regulations, it can place the company
under observation and reinspect the facilities; issue a warning letter apprising
of violative conduct; detain or seize products; mandate a recall; enjoin future
violations; and assess civil and criminal penalties against the company, its
officers or its employees.
On November 21, 1997, we received a warning letter from the FDA. The
warning letter was issued as a procedural follow-up to a Form 483 resulting from
a routine inspection. The warning letter included observations that our
definitions for complaints and Medical Device Reports (MDR)
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were not appropriate. The FDA completed an inspection relating to these issues
and our manufacturing facility on March 13, 1998 and determined that the areas
inspected appear to be in substantial compliance with the applicable
requirements of the FDA and its implementing regulations.
We are also subject to regulation in each of the foreign countries in
which we sell products. Many of the regulations applicable to ours products in
such countries are similar to those of the FDA. However, the national health or
social security organizations of certain countries require our products to be
qualified before they can be marketed in those countries. No assurance can be
given that such clearances will be obtained. Regulations regarding the
manufacture and sale of our products are subject to change.
There can be no assurance that federal, state, local, or foreign
governments will not change existing laws or regulations, adopt new laws or
regulations that would increase our cost of doing business, lower reimbursement
levels, or otherwise have a material adverse effect on our business, financial
condition, cash flows, and results of operations, or that we will be able to
comply with applicable laws or regulations.
THE GOVERNMENT MAY REQUIRE US TO CHARGE LESS FOR OUR PRODUCTS. Trends
toward managed care, health care cost containment, and other changes in
government and private sector initiatives in the United States and other
countries in which we do business are placing increased emphasis on the delivery
of more cost-effective medical therapies. During the last few years, the major
third-party payers of hospital service, Medicare, Medicaid and private health
care insurers, have substantially revised their payment methodologies resulting
in tighter standards for reimbursement of hospital charges for certain medical
procedures. In addition, there is also downward price pressure in the
pre-hospital market due to Medicare, Medicaid and private health care insurer
cutbacks. Recently, proposals were adopted that will change the reimbursement
procedures for the capital expenditure portion of the cost of providing care to
Medicare patients. A material decrease in the care reimbursement levels could
adversely affect future sales of our products.
Numerous legislative proposals have been considered that would result in
major reforms in the United States health care system. We cannot predict which,
if any, health care reforms may be proposed or enacted or the effect that any
such legislation would have on our business. In addition, managed care providers
are attempting to contain health care costs through the use of outpatient
services and specialized treatment facilities. No assurance can be given that
changing industry practices will not have an adverse effect on our business,
financial condition, and results of operations.
Uncertainty remains with regard to future changes within the health care
industry. The trend towards managed care and economically motivated buyers may
result in downward pressure on selling prices and deterioration of gross
margins. The United States marketplace is increasingly characterized by
consolidation among health care facilities and purchasers of medical devices who
prefer to limit the number of suppliers from whom they purchase medical
products. There can be no assurance that these entities will continue to
purchase our products or that they will not seek to impose discounts from our
normal prices. In addition, international markets are also being affected by
economic pressure to contain health care costs.
Our levels of revenues and profitability of sales may be affected by the
continuing efforts of governmental and third party payers to contain or reduce
the costs of health care through various means and the initiatives of third
party payers with respect to the availability of reimbursement. For example, in
certain foreign markets, pricing or profitability is subject to government
control. In the United States there have been, and we expect that there will
continue to be, a number of federal and state proposals to implement similar
governmental control. Although we cannot predict what
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legislative reforms may be proposed or adopted or what actions federal, state or
private payers for health care products may take in response to any health care
reform proposals or legislation, the existence and pendency of such proposals
could have a material adverse effect on us. Whether a medical procedure is
subject to reimbursement from third party payers impacts upon the likelihood
that a medical product associated with such a procedure will be purchased. Third
party payers are increasingly challenging the prices charged for medical
products. To the extent any or all of our products, and any accompanying medical
procedures, are not reimbursable by third party payers or the amount reimbursed
is adversely adjusted, our ability to sell products on a competitive basis will
be adversely affected, which could have a material adverse effect on us.
UNCERTAIN CUSTOMER DECISION PROCESSES. Many of the customers in the
pre-hospital market consist of municipal fire and EMS departments. As a result,
there are numerous decision-makers and governmental procedures in the decision
process. In addition, at most hospitals decisions concerning the purchase of new
medical devices are made on a department-by-department basis. Accordingly, we
believe the purchasing decisions of many of our customers may be characterized
by long decision processes, which may result in long sales cycles for our
products.
INTEGRATION OF ACQUISITIONS IS UNCERTAIN AND TIME-CONSUMING. We have
merged a wholly-owned subsidiary with and into Pinpoint Technologies, Inc. so
that Pinpoint is now our wholly-owned subsidiary. We expect this merger to
result in certain benefits, but achieving the benefits of the merger will depend
in part upon the integration of the businesses of our operations with those of
Pinpoint in an efficient manner, and there can be no assurance that this will
occur. Integrating our operations with those of Pinpoint may be difficult, time
consuming and costly. The difficulties of such integration may be increased by
the necessity of coordinating geographically separated organizations and
addressing possible differences in corporate cultures and management
philosophies.
The transition to a combined company will require substantial attention
from management of both Zoll and Pinpoint. The diversion of management attention
and any difficulties encountered in the transition process could have adverse
effects on our business, financial condition and results of operation. In
addition, the process of combining the two organizations could cause the
interruption of, or a disruption in, the companies' businesses, which could have
a material adverse effect on their combined operations. There can be no
assurance that we will realize any of the anticipated benefits of the merger. If
we are not able to effectively integrate our operations, technology and
personnel in a timely and efficient manner, then we will not realize the
benefits we expect from the merger. In particular, if the integration is not
successful our operating results may be harmed, we may lose key personnel, and
the market price of our common stock may decline.
INTERNATIONAL SALES EXPOSE US TO CURRENCY EXCHANGE RATE FLUCTUATIONS AND
OTHER RISKS. We sell many of our products to foreign purchasers, particularly in
countries located in Europe and Asia. As a result, a significant portion of our
sales is subject to the risks of international business, including fluctuations
in foreign currencies, trade disputes, changes in regulatory requirements,
tariffs and other barriers, the possibility of quotas, duties, taxes or other
changes or restrictions upon the importation or exportation of the products
being implemented by the United States or these foreign countries, timing and
availability of import/export licenses, political and economic instability,
difficulties in accounts receivable collections, difficulties in managing
distributors, the burden of complying with a wide variety of complex treaties
and foreign laws, accepting customer purchase orders governed by foreign laws
which may differ significantly from United States laws and limit our ability to
enforce our rights under such agreements and to collect damages, if awarded and
the general economies of these countries in which we transact business. We also
resell trade-in products through distributors in Latin America. Economic
disruption in that region could affect our ability to resell trade-in products.
Our inability to sell trade-in products might require us to offer lower trade-in
values, which might impact our ability to sell new products to customers
desiring to trade in older models and then purchase newer products.
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Our revenue from international operations can be denominated in or
significantly influenced by the currency of the country in which we make sales.
A decrease in the value of such foreign currencies relative to the U.S. dollar
could result in downward price pressure for our products or losses from currency
exchange rate fluctuations. As we continue to expand our international
operations, downward price pressure and exposure to gains and losses on foreign
currency transactions may increase. We may choose to limit such exposure by
entering into forward-foreign exchange contracts or engaging in similar hedging
strategies. There can be no assurance that any currency exchange strategy would
be successful in avoiding losses due to exchange rate fluctuations, or that the
failure to manage currency risks effectively would not have a material adverse
effect on our business, financial condition, cash flows, and results of
operations. In addition, revenues we earn in foreign countries may be subject to
taxation by more than one jurisdiction, including foreign jurisdictions which
might have higher tax rates than the U.S., thereby adversely affecting our
earnings.
OUR DEPENDENCE ON SOLE AND SINGLE SOURCE SUPPLIERS AND INDEPENDENT
MANUFACTURERS EXPOSES US TO SUPPLY INTERRUPTIONS THAT COULD RESULT IN PRODUCT
DELIVERY DELAYS. Although we use many standard parts and components for our
products, some key components are purchased from sole or single source vendors
for which alternative sources are not currently readily available. Our inability
to obtain sufficient quantities of these components may result in future delays
or reductions in product shipments which could materially adversely affect our
business, financial condition and results of operations. We currently purchase
proprietary components including, but not necessarily limited to, capacitors,
screens, gate arrays and integrated circuits for which there are no direct
substitutes. These components could be replaced with alternatives from other
suppliers, but that would involve a redesign of our products. Such redesign
would involve considerable time and expense. We currently enter into purchase
orders with our suppliers for materials based on forecasts, but have no
guaranteed supply arrangements with these suppliers.
In addition, we currently use a small number of independent
manufacturers to manufacture several components to our design including, but not
necessarily limited to, circuit boards, molded plastic components, cables and
high voltage assemblies. Our reliance on independent manufacturers involves a
number of risks, including the potential for inadequate capacity, unavailability
of, or interruptions in access to, process technologies, and reduced control
over delivery schedules, manufacturing yields and costs. If our manufacturers
are unable or unwilling to continue manufacturing our components in required
volumes, we will have to transfer manufacturing to acceptable alternative
manufacturers whom we have identified, which could result in significant
interruption of supply. Moreover, the manufacture of these components is
extremely complex, and our reliance on the suppliers of these components exposes
us to potential production difficulties and quality variations, which could
negatively impact cost and timely delivery of our products. We currently enter
into purchase orders with independent manufacturers of materials based on
forecasts, but have no guaranteed arrangements with these manufacturers. Any
significant interruption in the supply, or degradation in the quality, of any
component would have a material adverse effect on our business, financial
condition and results of operations.
COMPETITORS CAN USE SOME OF OUR PREVIOUSLY PROPRIETARY TECHNOLOGY;
POTENTIAL CLAIMS OF PATENT INFRINGEMENT. Our United States pacing system patent,
which expires in 1999, relates to the combination of the duration and shape of
the pacing pulse and the characteristics of the electrodes used in its
non-invasive pacing system. Corresponding patents have been issued in Canada,
France, United Kingdom and Japan. A number of additional U.S. and foreign
patents are now pending or have been issued relating to novel bi-phasic
defibrillation waveform technologies. Several United States patents related to
features of the 1400, 1600 and 2000 pacer/defibrillator, Powercharger and Stat
Padz electrodes have been issued. Foreign patents relating to the 1400/1600/2000
pacer/defibrillator are pending.
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Any claims asserting that our products infringe or may infringe
proprietary rights of third parties, if determined adversely to us, could have a
material adverse effect on our business, financial condition and results of
operations. Any claims, with or without merit, could be time-consuming, result
in costly litigation, divert the efforts of our technical and management
personnel, cause product shipment delays or require us to enter into royalty or
licensing agreements, any of which could have a material adverse effect upon our
operating results. Legal action claiming patent infringement may be commenced
against us. We cannot assure you that we would prevail in such litigation given
the complex technical issues and inherent uncertainties in patent litigation. In
the event a claim against us was successful, and we could not obtain a license
to the relevant technology on acceptable terms or license a substitute
technology or redesign to avoid infringement, this could have a material adverse
effect on our business, financial condition and results of operations.
YEAR 2000 PROBLEMS COULD DISRUPT OUR BUSINESS. Many existing computer
software programs and operating systems were designed such that the year 1999 is
the maximum date that many computer systems will be able to process. We have
undertaken an assessment of our vulnerability to the so-called "Year 2000 issue"
with respect to our computer systems. The assessment was based upon formal and
informal communications with the software vendors, literature supplied with the
software, literature received in connection with maintenance contracts, and test
evaluations of the software.
We have completed a review of our business systems with regard to Year
2000 compliance. Our information technology systems are being upgraded with a
vendor supplied Year 2000 software package. Although we are testing these
systems, there can be no assurance that these systems will function properly in
an operational environment. We have also assessed the readiness of our factory,
facility, and telecommunications systems and the equipment used to support our
manufacturing processes. Again there can be no assurance that the tests
performed adequately ensure that these systems will function properly in Year
2000. We rely on a variety of either single source or critical source vendors in
the production of our products. There can be no assurance that third party
suppliers will not experience unforeseen difficulties and be unable to supply
components for our products or that third party providers of the hardware upon
which our software runs will not be materially harmed by Year 2000 and be unable
to continue to provide such hardware to us. Year 2000 problems could cause our
banks to experience disruptions which could adversely affect our operations.
Year 2000 problems could also adversely affect our customers and their ability
to pay us, which would adversely affect our operating results. We might also be
affected by the failure of government agencies on which we depend to maintain
services essential to our operations. Any Year 2000 related problems in the
airline industry might impact our sales force and thus our operating results. We
could also be harmed materially by any significant economic, financial market or
infrastructure disruption attributable to Year 2000 problems. We have completed
our Year 2000 testing of our products and believe them to be Year 2000
compliant. It is possible that this testing did not identify problems that might
still occur in an operational environment.
RELIANCE ON OVERSEAS VENDORS FOR SOME COMPONENTS EXPOSES US TO
INTERNATIONAL BUSINESS RISKS. Some of the components we use in our products are
acquired from foreign manufacturers worldwide, particularly countries located in
Europe and Asia. As a result, a significant portion of our purchases of
components is subject to the risks of international business, including
fluctuations in foreign currencies, trade disputes, changes in regulatory
requirements, tariffs and other barriers, the possibility of quotas, duties,
taxes or other changes or restrictions upon the importation or exportation of
the components being implemented by the United States or these foreign
countries, timing and availability of import/export licenses, political and
economic instability and the general economies of these countries in which we
purchase components.
WE RELY HEAVILY ON SEVERAL EMPLOYEES WHO MAY LEAVE. Our future operating
results will depend in part upon the contributions of the persons who will serve
in senior management positions
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and the continued contributions of key technical personnel, some of whom would
be difficult to replace. Mr. Rolf Stutz, our former Chief Executive Officer,
died in November 1999 and was replaced by Mr. Richard Packer, who has been
serving as our President since 1996. In addition, our future success will depend
in part upon our ability to attract and retain highly qualified personnel,
particularly product design engineers. There can be no assurance that we will be
successful in hiring or retaining qualified personnel. Any loss of key personnel
or the inability to hire or retain qualified personnel could have a material
adverse effect on the our business, financial condition and results of
operations.
CHANGES IN QUARTERLY OPERATING RESULTS WILL IMPACT MARKET PRICES. Our
results of operations may fluctuate significantly from quarter to quarter.
Various factors may affect results of operations, including quarterly variations
in product orders, timing of new product introductions, the extent to which the
products gain market acceptance, changes in distribution channels, actions of
competitors, the ability of our sales force to effectively market our products,
regulatory actions, and delays in domestic or foreign regulatory approvals. As a
result of such quarterly fluctuations, the market for our common stock may be
volatile.
POTENTIAL ANTI-TAKEOVER EFFECTS OF CHARTER, BY-LAW AND OTHER PROVISIONS.
Certain provisions of Massachusetts law, our Restated Articles of Organization
and Restated By-Laws and our Shareholder Rights Agreement could delay or impede
the removal of incumbent directors and could make more difficult a merger,
tender offer or proxy contest involving the Company, even if such events could
be beneficial, in the short term, to the interests of the stockholders. Such
provisions could limit the price that certain investors might be willing to pay
in the future for shares of our common stock. Our Board of Directors is divided
into three classes, with directors in each class elected for three-year terms.
The Restated Articles of Organization and the Restated By-Laws also impose
various procedural and other requirements which could make it more difficult for
stockholders to effect certain corporate actions. Shares of preferred stock may
be issued by the Board of Directors without stockholder approval on such terms
as the Board may determine.
We have adopted a so-called "poison pill." This poison pill
significantly increases the costs that would be incurred by an unwanted third
party acquiror if such party owns more than 15% of our outstanding common stock.
The existence of this poison pill could deter a takeover of the Company.
WE HAVE ONLY ONE MANUFACTURING FACILITY FOR EACH OF OUR MAJOR PRODUCTS.
We have only one manufacturing facility which produces defibrillators and one
separate manufacturing facility which produces electrodes. Damage to either
facility could render us unable to manufacture the relevant product or to reduce
the output of products at the damaged facility. This would materially and
adversely impact our business, financial condition and results of operations.
TIGHT LABOR MARKETS COULD MAKE IT DIFFICULT TO RECRUIT EMPLOYEES. Our
business is dependent upon our ability to hire and retain qualified personnel.
Increasingly tight labor markets could make it more difficult and/or expensive
to recruit and retain employees, which could adversely affect our operations and
financial results. In addition, in order to grow our business, we will need to
hire more qualified personnel. There can be no assurance that we will be able to
hire such persons in a cost effective manner.
OUR INVESTMENTS MAY LOSE VALUE IN THE FUTURE. We own and may in the
future invest in the securities of other companies and participate in joint
venture agreements. These investments will be subject to the risks that the
entities in which we invest will become bankrupt or lose money. Investing in
securities involves risks and no assurance can be made as to the profitability
of any investment. Our inability to identify profitable investments could
adversely affect our financial condition and results of operations. Unless we
hold a majority position in an investment or joint venture, we will not be able
to control all of the activities of the companies in which we invest or the
joint ventures in which we are participating. Because of this, such entities may
take actions against
9
<PAGE> 11
our wishes and not in furtherance of, and even opposed to, our business plans
and objectives. These investments are also subject to the risk of impasse if no
one party exercises ultimate control over the business decisions.
WE MAY BE UNABLE TO OBTAIN DEBT OR EQUITY FINANCING WHICH WE NEED TO
GROW. Our future growth is dependent upon our ability to obtain debt and/or
equity financing. Changes in the capital markets or our ability to access the
capital markets could prevent us from obtaining financing on acceptable terms.
This could impact our ability to grow our business.
OUR OPERATING RESULTS ARE LIKELY TO FLUCTUATE AND CAUSE OUR STOCK PRICE
TO BE VOLATILE, ANTICIPATION OF A VOLATILE STOCK PRICE CAN CAUSE GREATER
VOLATILITY. Our quarterly and annual operating results are fluctuating due to
the recent increased demand for our products. The current high demand for our
products has disrupted our normal factory utilization and caused shipments to
occur in uneven patterns. During this period of high demand, our quarterly and
annual operating results will vary based on our ability to deliver products.
Thus, period to period comparisons should not be relied upon as indications of
future performance. In addition, in anticipation of less successful quarterly
results, parties may take short positions in our stock. The actions of parties
shorting our stock might cause even more volatility in our stock price. The
volatility of our stock may cause the value of your investment to decline
rapidly.
10
<PAGE> 12
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 or at
the SEC's regional offices located at Seven World Trade Center, 13th Floor, New
York, New York 10048 and at Citicorp Center, 500 West Madison Street, (Suite
1400), Chicago, Illinois 60661. Our SEC filings are also available at the SEC's
Public Reference Section at 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The SEC also maintains a website with filings at
http://www.sec.gov.
INCORPORATION OF DOCUMENTS BY REFERENCE
This prospectus is part of a registration statement that we have filed
with the SEC to register the shares of common stock offered in this prospectus.
This prospectus does not repeat important information that you can find in our
registration statement and its exhibits or in the reports and other documents
that we file with the SEC. Our SEC file number is 000-20225. The SEC allows us
to "incorporate by reference" the information we file with them. This means that
we can disclose important information to you by referring you to other documents
that are legally considered to be part of this prospectus, and information that
we file later with the SEC will automatically update and supersede the
information in this prospectus and the documents listed below.
We incorporate by reference the documents listed below, which we have
already filed with the SEC, and any future filings we make with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
all of the shares of common stock offered in this prospectus are sold:
- our Annual Report on Form 10-K for the fiscal year ended
September 26, 1998;
- our Quarterly Reports on Form 10-Q for the quarters ended
January 2, 1999, April 3, 1999 and July 3, 1999.
- our Proxy Statement dated January 11, 1999 prepared in
connection with our Annual Meeting of Shareholders held on
February 4, 1999;
- our Current Report on Form 8-K dated October 29, 1999; and
- the description of our shares of common stock contained in our
registration statement on Form 8-A, including all amendments and
reports updating such description.
YOU MAY REQUEST A COPY OF THESE DOCUMENTS INCORPORATED BY REFERENCE, AND
ANY EXHIBITS WE HAVE SPECIFICALLY INCORPORATED BY REFERENCE TO AN EXHIBIT IN
THIS PROSPECTUS, AT NO COST BY WRITING OR TELEPHONING US AT THE FOLLOWING
ADDRESS: ZOLL MEDICAL CORPORATION, 32 SECOND AVENUE, BURLINGTON, MASSACHUSETTS
01803, ATTENTION: CHIEF FINANCIAL OFFICER. OUR TELEPHONE NUMBER IS (781)
229-0020.
You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. You should not assume that the information in this
prospectus or the documents incorporated by reference is accurate as of any date
other than the date on the front of this prospectus or those documents.
11
<PAGE> 13
FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporated by reference
into this prospectus, contains statements that are forward-looking statements
within the meaning of Section 27A of the Securities Act of 1933 and Section 21E
of the Securities Exchange Act of 1934. When we use the words "believe,"
"expect," "anticipate," "intend," "estimate," "assume" and other similar
expressions, they are generally forward-looking statements. These statements
include, among other things, statements regarding our intent, belief or
expectations with respect to:
- market acceptance of new products;
- competition in the industry;
- the impact of pending or future litigation;
- the impact of future product recalls;
- changes in, or the failure or inability to comply with,
governmental regulation;
- the integration of the personnel, products and operations of
Pinpoint Technologies, Inc., which we recently acquired;
- exchange rate fluctuations;
- the implementation of our plan to address Year 2000 issues;
- the availability of debt and equity financing;
- development of new competitive technologies;
- availability of key components for our products;
- availability of qualified personnel;
- international, national, regional and local economic and
political changes;
- the value of our investments;
- our factory loading;
- general economic conditions; and
- trends affecting the medical device industry or our financial
condition or results of operations.
You should not rely on forward-looking statements, because they involve
known and unknown risks, uncertainties and other factors, some of which are
beyond our control. These risks, uncertainties and other factors may cause our
actual results, performance or achievements to differ materially from the
anticipated future results, performance or achievements expressed or implied by
the forward-looking statements. In addition to the factors discussed under the
preceding "Risk Factors" section, some of the factors that might cause these
differences include, but are not limited to, the following:
- competition may lead to worse than expected financial condition
or results of operations;
- the demand for new products is unpredictable;
- pending or future litigation may negatively impact our financial
condition or results of operations;
12
<PAGE> 14
- future recalls may negatively impact our financial condition or
results of operations;
- government regulation may negatively impact our financial
condition or results of operations;
- costs associated with integrating acquisitions may be larger
than we anticipate;
- exchange rate fluctuations may affect profitability of overseas
sales;
- failure to implement our plan to address Year 2000 issues could
adversely impact our products and operations;
- failure to obtain debt and/or equity financing could negatively
impact our ability to grow our business;
- manufacturing disruptions could negatively impact our financial
condition or results of operations;
- qualified personnel may not be available which could negatively
impact our ability to grow our business;
- the value of our investments may decline which could negatively
impact our financial condition or results of operations; and
- the production of commercially feasible products may take longer
and cost more than expected.
We caution you that while forward-looking statements reflect our
estimates and beliefs, they are not guarantees of future performance. These
forward-looking statements were based on information, plans and estimates at the
date of this prospectus, and we disclaim any obligation to update or revise any
forward-looking statements to reflect changes in underlying assumptions or
factors, new information, future events or other changes.
13
<PAGE> 15
OUR COMPANY
ZOLL MEDICAL CORPORATION
- We were incorporated in Massachusetts in 1980. We design,
manufacture and market an integrated line of proprietary,
non-invasive cardiac resuscitation devices, external
pacemaker/defibrillators, disposable electrodes, mobile ECG
Systems, and Emergency Medical Systems ("EMS") data management
products. Our product line includes combination
pacemaker/defibrillators, stand-alone pacemakers and
defibrillators and disposable multi-function electrodes that
permit cardiac monitoring, pacing and defibrillation through a
single pair of electrodes. We also produce and sell software and
associated hardware for data collection and management in the
EMS market.
- The principal markets for cardiac resuscitation equipment are
hospitals and pre-hospital care providers such as paramedics,
ambulance operators, emergency medical technicians, firefighters
and other "first response" emergency personnel and the so called
"public access" care providers including police and security
officers. We also sell data management products primarily to the
pre-hospital market.
- Our executive offices are located at 32 Second Avenue in
Burlington, Massachusetts 01803 and our telephone number is
(781) 229-0020.
14
<PAGE> 16
REGISTRATION RIGHTS OF THE SELLING SHAREHOLDERS
The following is a summary of the material terms and provisions of the
registration rights agreement, which we entered into in connection with a merger
agreement. The shares offered by this prospectus are subject to this
registration rights agreement. It may not contain all the information that is
important to you. You can access complete information by referring to the
registration rights agreement which has been filed with the SEC.
Under the registration rights agreement, we are obligated to file a
registration statement covering the sale by the selling shareholders of 218,059
shares of common stock. Under the registration rights agreement, we must use
reasonable efforts to cause the registration statement to be declared effective
by the SEC and to keep the registration statement continuously effective until
the earliest of (1) the date on which the selling shareholders no longer hold
any shares of common stock registered under this registration statement, (2) the
date on which all of the shares of common stock registered under this
registration statement have become eligible for sale under Rule 144 of the
Securities Act of 1933 or (3) the date which is one year after the effective
date of this registration statement. Any shares of common stock sold by the
selling shareholders pursuant to this prospectus or which may be sold by the
selling shareholders without restriction under Rule 144 will no longer be
entitled to the benefits of the registration rights agreement. We are also
obligated, under the registration rights agreement, to allow the selling
shareholders to "piggyback" on certain registration statements we file after
October 15, 2003.
The registration rights agreement requires that we bear all expenses of
registering the shares of common stock with the exception of brokerage
commissions and taxes of any kind and any legal, accounting and other expenses
incurred by the selling shareholders. We also agreed to indemnify the selling
shareholders against all losses, claims, damages, actions, liabilities, costs
and expenses (including reasonable attorneys' fees and expenses) arising under
the securities laws in connection with the registration statement or this
prospectus, subject to limitations specified in the registration rights
agreement. In addition, the selling shareholders agreed to indemnify us and our
officers, directors, employees, agents, representatives and affiliates and any
person who controls our company against all losses, claims, damages, actions,
liabilities, costs and expenses arising under the securities laws if they result
from (1) information furnished to us by the selling shareholders for use in the
registration statement or this prospectus or any amendments to the registration
statement or any prospectus supplements or (2) the selling shareholders' failure
to deliver or cause to be delivered this prospectus or any amendments or
prospectus supplements to any purchaser of shares of common stock covered by
this prospectus from the selling shareholders.
15
<PAGE> 17
THE SELLING SHAREHOLDERS
The following table sets forth the number and percentage of shares of
common stock beneficially owned by the selling shareholders as of October 29,
1999, the number of shares of common stock covered by this prospectus and the
total number and percentage of shares of common stock which the selling
shareholders will beneficially own upon completion of this offering. This table
assumes that the selling shareholders offer and sell all of the shares of common
stock under the registration statement.
We are obligated by the terms of the registration rights agreement to
file this registration statement on behalf of each of the selling shareholders.
Each selling shareholder may offer and sell all of the securities registered
under this registration statement. Inclusion on the following table does not
imply that any selling shareholders will actually offer or sell any of the
shares registered in his name.
The shares of common stock offered by the prospectus may be offered from
time to time by the selling shareholders named below, or by any of their
pledges, donees, transferees or other successors in interest. The amounts set
forth below are based upon information provided to us by the selling
shareholders, or on our records, as of October 29, 1999 and are accurate to the
best of our knowledge. It is possible, however, that the selling shareholders
may acquire or dispose of additional shares of common stock from time to time
after the date of this prospectus.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY SHARES BENEFICIALLY
OWNED BEFORE OFFERING SHARES OF OWNED AFTER OFFERING(2)
-------------------------- COMMON STOCK -------------------------
NAME NUMBER(1) PERCENTAGE(3) OFFERED HEREBY NUMBER PERCENTAGE(3)
- ---- --------- ------------- -------------- -------- ------------
<S> <C> <C> <C> <C> <C>
David Brown, President of
Pinpoint Technologies, Inc. (4) 196,088 2.9% 98,044 98,044 1.5%
David G. Cohen, Vice President of
Pinpoint Technologies, Inc. (4) 196,088 2.9% 98,044 98,044 1.5%
Robert Durkin, Jr., Vice President of
Pinpoint Technologies, Inc. (4) 43,943 * 21,971 21,972 *
------- ---- ------- ------- ----
TOTAL 436,119 6.4% 218,059 218,060 3.3%
======= ==== ======= ======= ====
</TABLE>
- ----------
* Less than one percent (1%).
(1) Does not include options held by each of the selling shareholders which
allow each selling shareholder to purchase 50,000 shares of common stock,
which become exercisable on October 15, 2003.
(2) Assumes that all shares of common stock offered hereby will be sold by the
selling shareholders.
(3) The total number of shares of common stock outstanding used in calculating
such percentage is based on 6,774,929 shares, which is the total number
of shares of common stock outstanding as of October 15, 1999.
(4) Pinpoint Technologies, Inc. became our wholly-owned subsidiary on October
15, 1999.
16
<PAGE> 18
USE OF PROCEEDS
The selling shareholders will receive all of the proceeds from the sale
of shares of common stock covered by the prospectus. We will not receive any of
the proceeds from the sale by the selling shareholders of the shares of common
stock covered by this prospectus.
PLAN OF DISTRIBUTION
This prospectus relates to the possible sale from time to time of up to
an aggregate of 218,059 shares of common stock by the selling shareholders, or
any of their pledgees, donees, transferees or other successors in interest. The
sale of shares of common stock by the selling shareholders may be effected in
one or more transactions by selling shares of common stock directly to
purchasers or to or through broker-dealers. In connection with any such sale,
any such broker-dealer may act as agent for the selling shareholders or may
purchase from the selling shareholders all or a portion of the shares of common
stock as principal, and may be made pursuant to any of the methods described
below. Such sales may be made on the Nasdaq National Market or other exchanges
on which the shares of common stock are then traded, in the over-the-counter
market, in negotiated transactions or otherwise at prices and at terms then
prevailing or at prices related to the then-current market prices or at prices
otherwise negotiated.
Shares of common stock may also be sold in one or more of the following
transactions:
- block transactions in which a broker-dealer may sell all or a
portion of such shares as agent but may position and resell all
or a portion of the block as principal to facilitate the
transaction;
- ordinary brokerage transactions and transactions in which any
such broker-dealer solicits purchasers;
- sales "at the market" to or through a market maker or into an
existing trading market, on an exchange or otherwise, for such
shares; and
- sales in other ways not involving market makers or established
trading markets, including direct sales to purchasers.
To comply with applicable state securities laws, the shares of common
stock will be sold, if necessary, in such jurisdictions only through registered
or licensed brokers or dealers. In addition, shares of common stock may not be
sold in some states unless they have been registered or qualified for sale in
the state or an exemption from such registration or qualification requirement is
available and is complied with.
We will pay all expenses relating to the registration of the shares of
common stock, other than brokerage fees and taxes of any kind. We have agreed to
indemnify the selling shareholders against some losses, claims, damages,
actions, liabilities, costs and expenses, including liabilities under the
Securities Act of 1933. See "Registration Rights of the Selling Shareholders."
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements and schedules included in our Annual Report on Form 10-K
for the year ended September 26, 1998, as set forth in their report, which is
incorporated by reference in this prospectus and elsewhere in the registration
statement. Our financial statements and schedules are incorporated by reference
in reliance on Ernst & Young LLP's report, given on their authority as experts
in accounting and auditing.
17
<PAGE> 19
VALIDITY OF SHARES OF COMMON STOCK
The validity of the shares of common stock being offered by the selling
shareholders will be passed upon by Goodwin, Procter & Hoar LLP, Boston,
Massachusetts.
18
<PAGE> 20
================================================================================
You should rely only on the information contained in this prospectus,
incorporated herein by reference or contained in a prospectus supplement.
Neither we nor the selling shareholders have authorized anyone else to provide
you with different or additional information. The selling shareholders are not
making an offer of these securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus, or
incorporated herein by reference, or in any prospectus supplement, is accurate
as of any date other than the date on the front of those documents.
----------
TABLE OF CONTENTS
PAGE
Prospectus Summary........................................................ 2
Risk Factors.............................................................. 3
Where You Can Find More Information....................................... 11
Incorporation of Documents By Reference................................... 11
Forward-Looking Statements................................................ 12
Our Company............................................................... 14
Registration Rights of the Selling Shareholders........................... 15
The Selling Shareholders.................................................. 16
Use of Proceeds........................................................... 17
Plan of Distribution...................................................... 17
Experts................................................................... 17
Validity of Securities.................................................... 18
----------
218,059 SHARES
ZOLL MEDICAL CORPORATION
SHARES OF COMMON STOCK
----------
PROSPECTUS
----------
, 1999
================================================================================
<PAGE> 21
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses payable by us in connection with
the issuance and distribution of the securities being registered (all amounts
except the registration fee are estimated):
<TABLE>
<S> <C>
Registration fee -- Securities and Exchange Commission........ $ 2,304
Accountants' fees and expenses................................ 25,000
Blue Sky fees and expenses.................................... 1,000
Legal fees and expenses (other than Blue Sky)................. 25,000
Printing expenses............................................. 1,000
Nasdaq Listing Fee............................................ 8,800
Miscellaneous................................................. 1,896
---------
TOTAL......................................................... $ 65,000
=========
</TABLE>
We have agreed to pay all of these fees.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Our restated articles of organization provide that a director shall not
have personal liability to us or our shareholders for monetary damages arising
out of the director's breach of fiduciary duty as a director, provided, however,
that such provision does not eliminate or limit the liability of a director (i)
for any breach of the director's duty of loyalty to the corporation or its
shareholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or knowing violation of law, (iii) under Sections 61 or
62 of the Massachusetts Business Corporation Law dealing with liability for
unauthorized distributions and loans to insiders, respectively, or (iv) for any
transaction from which the director derived an improper personal benefit. No
amendment or repeal of our articles of organization shall adversely effect these
provisions for acts occurring prior to such amendment.
Our amended and restated by-laws further provide that we shall, except
as limited by law, indemnify each person who is or was a director or officer of
our company or who is or was a director or officer of our company and is
serving, or shall have served, at our request, as director, officer, employee,
trustee, partner or other agent of another organization or in any capacity with
respect to any employee benefit plan of our company, against all expenses
actually and reasonably incurred (including attorneys' fees and disbursements),
judgments, awards, fines and penalties and reasonable amounts paid in settlement
of a proceeding incurred by him or on his behalf in connection with, or arising
out of, the defense or disposition of any threatened, pending or completed
action, suit or other proceeding, whether civil, criminal, administrative or
investigative, in which he may be involved by reason of being or having been
such a director or officer or as a result of service with respect to any such
employee benefit plan. We shall not indemnify any director or officer who did
not act in the good faith and reasonable belief that his actions were in the
best interests of the company or, with respect to a criminal matter, that he did
not have reasonable cause to believe that his conduct was lawful. Additionally,
our by-laws provide that no indemnification shall be provided to a director or
officer with respect to any proceeding by or in the right of the company or if
it is determined that such party received an improper personal benefit, provided
that expenses incurred in successfully defending an allegation of improper
personal benefit may be paid by the company if approved by the Board of
Directors. Section 67 of Chapter 156B of the Massachusetts General Laws
authorizes a corporation to indemnify its directors, officers, employees and
other agents unless such person shall have been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that such action was in
the best interests of the corporation or, to the extent such matter is related
to service with respect to an employee benefit plan, in the best interests of
the participants or beneficiaries of such employee benefit plan.
II-1
<PAGE> 22
The effect of these provisions would be to permit indemnification by us
for, among other liabilities, liabilities arising out of the Securities Act of
1933, as amended.
Section 67 of the Massachusetts Business Corporation Law also affords a
Massachusetts corporation the power to obtain insurance on behalf of its
directors and officers against liabilities incurred by them in those capacities.
We have procured a directors' and officers' liability and company reimbursement
liability insurance policy that (i) insures our directors and officers against
losses (above a deductible amount) arising from certain claims made against them
by reason of certain acts done or attempted by such directors or officers and
(ii) insures us against losses (above a deductible amount) arising from any such
claims, but only if we are required or permitted to indemnify such directors or
officers for such losses under statutory or common law or under provisions of
our amended and restated articles of organization or amended and restated
by-laws.
ITEM 16. EXHIBITS.
4.1 Shareholders Rights Plan.(1)
4.2 Specimen Certificate for Shares of Common Stock, $.02 per value per
share, for Zoll Medical Corporation.(2)
4.3 Restated Articles of Organization.(2)
4.4 Amended and Restated By-laws.(2)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the validity of the shares
of common stock being offered.
21.1 Subsidiaries of Zoll Medical Corporation.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page hereof).
- ----------
(1) Incorporated by reference to Zoll Medical Corporation's Form 8-K filed
with the Securities and Exchange Commission on June 11, 1998.
(2) Incorporated by reference to Zoll Medical Corporation's Registration
Statement on Form S-1, as amended, filed with the Securities and
Exchange Commission on May, 15, 1992 (Registration Statement No.
33-47937).
ITEM 17. UNDERTAKINGS.
(a) Zoll Medical Corporation hereby undertakes:
(1) To file, during any period in which offers or sales are
being made pursuant to this registration statement, 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 this registration statement; and
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in this
registration statement or any material change to such information in
this registration statement;
II-2
<PAGE> 23
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
Securities and Exchange Commission by Zoll Medical Corporation pursuant to
Section 13 or 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 post-effective amendment that contains a form
of prospectus 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) Zoll Medical Corporation hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of Zoll
Medical Corporation'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 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 Zoll Medical Corporation pursuant to the foregoing provisions, or
otherwise, Zoll Medical Corporation has been informed that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy
as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by Zoll Medical Corporation of expenses incurred or paid by a
director, officer or controlling person of Zoll Medical Corporation 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, Zoll Medical Corporation 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 Securities Act of 1933 and will be
governed by the final adjudication of such issue.
II-3
<PAGE> 24
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Burlington, The Commonwealth of Massachusetts on
November 16, 1999.
ZOLL MEDICAL CORPORATION
By: /s/ Richard A. Packer
-------------------------------------
Richard A. Packer
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Zoll Medical Corporation hereby severally constitute Richard A.
Packer and A. Ernest Whiton, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration statement filed
herewith and any and all amendments to said registration statement, and
generally to do all such things in our names and in our capacities as officers
and directors to enable Zoll Medical Corporation to comply with the provisions
of the Securities Act of 1933 and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys, or any of them, to said registration statement
and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Signature Capacity Date
--------- -------- ----
/s/ Richard A. Packer Chief Executive Officer, November 16, 1999
- ------------------------- President and Director
Richard A. Packer (Principal Executive Officer)
/s/ A. Ernest Whiton Chief Financial Officer November 16, 1999
- ------------------------- (Principal Financial and
A. Ernest Whiton Accounting Officer)
/s/ Willard M. Bright Director November 16, 1999
- -------------------------
Willard M. Bright
/s/ Thomas M. Claflin, II Director November 16, 1999
- -------------------------
Thomas M. Claflin, II
/s/ James W. Biondi Director November 16, 1999
- -------------------------
James W. Biondi
/s/ M. Stephen Heilman Director November 16, 1999
- -------------------------
M. Stephen Heilman
/s/ Daniel M. Mulvena Director November 16, 1999
- -------------------------
Daniel M. Mulvena
II-4
<PAGE> 25
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Shareholders Rights Plan.(1)
4.2 Specimen Certificate for Shares of Common Stock, $.02 per value
per share, for Zoll Medical Corporation.(2)
4.3 Restated Articles of Organization.(2)
4.4 Amended and Restated By-laws.(2)
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the validity of the
shares of common stock being offered.
21.1 Subsidiaries of Zoll Medical Corporation.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
23.2 Consent of Ernst & Young LLP.
24.1 Powers of Attorney (included on signature page hereof).
- ----------
(1) Incorporated by reference to Zoll Medical Corporation's Form 8-K filed with
the Securities and Exchange Commission on June 11, 1998.
(2) Incorporated by reference to Zoll Medical Corporation's Registration
Statement on Form S-1, as amended, filed with the Securities and Exchange
Commission on May, 15, 1992 (Registration Statement No. 33-47937).
<PAGE> 1
EXHIBIT 5.1
November 16, 1999
Zoll Medical Corporation
32 Second Avenue, Northwest Park
Burlington, MA 01803
Ladies and Gentlemen:
Re: Registration Statement On Form S-3
This opinion is delivered in our capacity as counsel to Zoll Medical
Corporation (the "Company") in connection with the preparation and filing with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act") of a Registration Statement on Form S-3 (the "Registration
Statement") relating to 218,059 shares of Common Stock, par value $.02 per share
(the "Registered Shares") which the Company issued pursuant to the Company's
Agreement and Plan of Merger dated October 15, 1999 (the "Merger Agreement") by
and among the Company, Zollsub, Inc., Pinpoint Technologies, Inc., and David
Brown, David G. Cohen and Robert Durkin, Jr. As counsel for the Company, we have
examined a copy of the Merger Agreement, the Company's Restated Articles of
Organization and the Restated By-laws, each as presently in effect, and such
records, certificates and other documents of the Company as we have deemed
necessary or appropriate for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdiction
other than the laws of the United States of America and The Commonwealth of
Massachusetts.
Based on the foregoing, we are of the opinion that the Registered Shares
are legally issued, fully paid and non-assessable shares of the Company's Common
Stock under the General Business Corporation Law of The Commonwealth of
Massachusetts.
The foregoing assumes all requisite steps will be taken to comply with the
requirements of the Act, applicable requirements of state laws regulating the
offer and sale of securities and applicable requirements of The Nasdaq Stock
Market.
We hereby consent to being named as counsel to the Company in the
Registration Statement and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE> 1
EXHIBIT 21.1
LIST OF SUBSIDIARIES OF ZOLL MEDICAL CORPORATION
Name Jurisdiction of Incorporation
- ---- -----------------------------
Bio-Detek, Inc. Massachusetts
Pinpoint Technologies, Inc. Delaware
<PAGE> 1
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Zoll Medical
Corporation for the registration of 218,059 shares of its common stock and to
the incorporation by reference therein of our reports dated November 6, 1998
with respect to the consolidated financial statements of Zoll Medical
Corporation incorporated by reference in its Annual Report (Form 10-K) for the
year ended September 26, 1998 and the related financial statement schedules
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Ernst & Young LLP
Boston, Massachusetts
November 15, 1999
