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As filed with the Securities and Exchange Commission on May 30, 2000
REGISTRATION STATEMENT NO. 333-__________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM S-8
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 OF INCORPORATION) (I.R.S. EMPLOYER 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)
401(K) SAVINGS PLAN
(FULL TITLE OF THE PLAN)
----------------------
RICHARD A. PACKER
CHAIRMAN, 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)
----------------------
With a Copy to:
RAYMOND C. ZEMLIN, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share(2) Aggregate Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value $.02
Per share (3) 40,000 $48.6875 $1,947,500 $515
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Plan Interests (4) N/A N/A (4)
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</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares of Zoll Medical Corporation Common Stock as may be
required pursuant to the Registrant's 401(k) Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture of
stock under the plan or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act") solely for the purposes of
determining the amount of the registration fee. The registration fee is
based upon the average of the high and low prices for the Registrant's
Common Stock, par value $.02 per share, as reported on The Nasdaq National
Market on May 24, 2000.
(3) This Registration Statement also relates to the rights to purchase shares
of Series A Junior Participating Cumulative Preferred Stock of the
Registrant which are attached to all shares of Common Stock issued,
pursuant to the terms of the Registrant's Shareholder Rights Agreement
dated as of June 8, 1998. Until the occurrence of certain prescribed
events, the rights are not exercisable, are evidenced by the certificates
for the Common Stock and will be transferred with and only with such Common
Stock. Because no separate consideration is paid for the rights, the
registration fee therefore is included in the fee for the Common Stock.
(4) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
In accordance with Rule 457(h)(2), no separate fee calculation is made for
plan interests.
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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 by Part I to be contained in the Section 10(a)
Prospectuses is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8. The document(s) containing the information specified
in Part I will be sent or given to employees as specified by Rule 428(b)(1).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
We hereby incorporate by reference the following documents which we have
previously filed with the Securities and Exchange Commission pursuant to the
Securities and Exchange Act of 1934, as amended, (the "Exchange Act"):
(a) our annual report on Form 10-K filed with the Securities and Exchange
Commission on December 30, 1999;
(b) our Quarterly Reports on Form 10-Q filed with the Securities and
Exchange Commission on February 15, 2000 and May 16, 2000;
(c) our Current Report on Form 8-K filed with the Securities and Exchange
Commission on October 29, 1999, as amended on December 29, 1999,
January 18, 2000 and January 28, 2000; and
(d) the description of our Common Stock contained in the Registration
Statement on Form 8-A, filed pursuant to Section 12 of the Exchange
Act on May 15, 1992, including any amendments or reports filed for the
purposes of updating such description.
In addition, all documents we have subsequently filed with the Securities
and Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Exchange Act, prior to the filing of a post-effective amendment which indicates
that all securities offered hereunder have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of filing of such documents. Any statement contained in a document incorporated
by reference herein shall be deemed to be modified or superseded for purposes
hereof to the extent that a statement contained herein or in any subsequently
filed document which also is incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares to be offered hereby will be passed upon for
Zoll Medical Corporation by Goodwin, Procter & Hoar LLP Boston, Massachusetts,
counsel to Zoll Medical Corporation. A professional corporation controlled by
Raymond C. Zemlin, our Clerk, is a partner of Goodwin, Procter & Hoar LLP which
receives compensation from us for rendering legal services.
Item 6. 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, except as limited by
law, we shall indemnify each person who is or was a director or officer of our
company and each person who is or was a director or officer of our company who
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
distributions), 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, who 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.
The effect of these provisions would be to permit indemnification by us
for, among other liabilities, liabilities arising out of the Securities Act.
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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
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Item 8. EXHIBITS.
The following is a complete list of exhibits filed as part of this
Registration Statement.
EXHIBITS
*4.1 Zoll Medical Corporation Restated Articles of Organization
*4.2 Zoll Medical Corporation Amended and Restated By-laws
**4.3 Shareholder Rights Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on signature pages to this
Registration Statement)
* Incorporated by reference to the relevant exhibit to the Zoll Medical
Corporation Registration Statement on Form S-1, as amended, filed with the
Securities and Exchange Commission on May 15, 1992 (Registration Statement
No. 33-47937).
** Incorporated by reference to the relevant exhibit to our Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 11,
1998.
We hereby undertake that we will submit or have submitted the Plan and any
amendment thereto to the Internal Revenue Service (the "IRS") in a timely manner
and have made all changes required by the IRS in order to qualify the Plan under
Section 401 of the Internal Revenue Code.
Item 9. UNDERTAKINGS.
(a) Zoll Medical Corporation 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; and
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement.
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
Zoll Medical Corporation pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
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(b) Zoll Medical Corporation hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
Zoll Medical Corporation's annual report pursuant to Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) 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 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 advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act, 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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, Zoll Medical
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Burlington, The Commonwealth of Massachusetts on
this 26th day of May, 2000.
Zoll Medical Corporation
By: /s/ Richard A. Packer
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Richard A. Packer
Chief Executive Officer and President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Richard A. Packer and A. Ernest Whiton
such person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each 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 such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, 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 and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Richard A. Packer Chief Executive Officer, President May 24, 2000
----------------------------- and Director (Principal Executive Officer)
Rchard A. Packer
/s/ A. Ernest Whiton Chief Financial Officer (Principal May 26, 2000
----------------------------- Financial and Accounting Officer)
A. Ernest Whiton
/s/ Willard M. Bright Director May 26, 2000
-----------------------------
Willard M. Bright
Director ------------
-----------------------------
Thomas M. Claflin, II
/s/ James W. Biondi Director May 24, 2000
-----------------------------
James W. Biondi
/s/ M. Stephen Heilman Director May 24, 2000
------------------------------
M. Stephen Heilman
</TABLE>
S-1
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/s/ Daniel M. Mulvena
------------------------------ Director May 24, 2000
Daniel M. Mulvena
/s/ Benson F. Smith
------------------------------ Director May 24, 2000
Benson F. Smith
Pursuant to the requirements of the Securities Act of 1933, the trustee (or
other persons who administer the Plan) has duly caused this Form S-8
Registration Statement to be signed on behalf of the Plan by the undersigned,
thereunto duly authorized, in the City of Burlington, The Commonwealth of
Massachusetts on this 26th day of May, 2000.
ZOLL MEDICAL CORPORATION 401(K)
SAVINGS PLAN
By: Zoll Medical Corporation
Plan Administration of the 401(k) Savings Plan
By: /s/ Maureen H. Callahan
-----------------------------------------------
Name: Maureen H. Callahan
S-2
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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*4.1 Zoll Medical Corporation Restated Articles of Organization
*4.2 Zoll Medical Corporation Amended and Restated By-laws
**4.3 Shareholder Rights Plan
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of
the securities being registered
23.1 Consent of Goodwin, Procter & Hoar LLP (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Powers of Attorney (included on signature pages to this
Registration Statement)
* Incorporated by reference to the relevant exhibit to the Zoll Medical
Corporation Registration Statement on Form S-1, as amended, filed with the
Securities and Exchange Commission on May 15, 1992 (Registration Statement
No. 33-47937).
** Incorporated by reference to the relevant exhibit to our Current Report on
Form 8-K filed with the Securities and Exchange Commission on June 11,
1998.
