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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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DIAMETRICS MEDICAL, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-1663185
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2658 Patton Road
Roseville, Minnesota 55113
(Address, including Zip Code, of Principal Executive Offices)
Diametrics Medical, Inc.
1990 Stock Option Plan
1993 Directors' Stock Option Plan
(full title of the plans)
David T. Giddings
Chief Executive Officer
2658 Patton Road
Roseville, Minnesota 55113
(Name and address of agent for service)
(612) 639-8035
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of Proposed Maximum Proposed
Securities to be Amount to be Offering Price Maximum Aggregate Amount of
Registered Registered (1) per Share (2) Offering Price (2) Registration Fee
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $ .01 par value 900,000 $4.0625 $3,656,250 $1,079
=====================================================================================================
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(1) The number of shares being registered represents the number of shares
of Common Stock indicated for each of the following plans in addition
to shares previously registered under the plans: Diametrics Medical,
Inc. 1990 Stock Option Plan (750,000 shares); and Diametrics Medical,
Inc. 1993 Directors' Stock Option Plan (150,000 shares).
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) and based on the average high and low prices
for shares of the Company's Common Stock on the Nasdaq National Market
on September 14, 1998.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
REGISTRATION OF ADDITIONAL SECURITIES
Pursuant to Section E of the General Instructions to Form S-8, this
Registration Statement incorporates by reference the Registration Statement on
Form S-8 relating to the 1990 Stock Option Plan and 1993 Directors' Stock Option
Plan filed with the Securities and Exchange Commission (the "Commission") on
September 1, 1994 (File No. 33-83572), and the Registration Statement on Form
S-8 relating to the 1990 Stock Option Plan filed with the Commission on March
28, 1997 (File No. 333-24169).
ITEM 8. EXHIBITS
Exhibit
Number Description
------ -----------
4.1 Articles of Incorporation of the Company, as amended to date
(incorporated by reference to the Company's Quarterly Report
on Form 10-Q, for the fiscal quarter ended March 31, 1997).
4.2 Bylaws of the Company, as amended to date (incorporated by
reference to the Company's Annual Report on Form 10-K, for the
fiscal year ended December 31, 1996).
4.3 Form of Certificate for Common Stock (incorporated by
reference to the Company's Registration Statement on Form S-1
(File No. 33-78518)).
5 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
24 Power of Attorney (included on signature page).
ITEM 9. UNDERTAKINGS
A. Post-Effective Amendments
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
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(ii) to reflect in the prospectus any facts or events arising after
the effective date of this 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. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the
form of a prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table 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;
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) of this section do
not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934, as amended, that
are incorporated by reference in the Registration Statement.
(2) That, for the purpose of determining liability under the Securities
Act, 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 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. Subsequent Documents Incorporated by Reference
The registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in 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. Claims for Indemnification
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that, in the opinion of the 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 the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 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, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Roseville, State of Minnesota, on September 18, 1998.
DIAMETRICS MEDICAL, INC.
By /s/ David T. Giddings
--------------------------
David T. Giddings
President, Chief Executive
Officer and Chairman
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose
signature appears below hereby constitutes and appoints David T. Giddings and
Laurence L. Betterley or either of them (with full power to act alone), his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any additional Registration
Statement pursuant to Rule 462(b) under the Securities Act of 1933, as amended,
and any or all amendments (including post-effective amendments) to this
Registration Statement on Form S-8, (or Registration Statements, if an
additional Registration Statement is filed pursuant to Rule 462(b)) and to file
the same, with all exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission and any necessary state securities
commissions or other agencies, granting unto said attorneys-in-fact and agents,
and each of them, full power and authority to do and perform to all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorneys-in-fact and agents, or any of them, or their or his
substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in the
capacities indicated on the 18th day of September 1998.
Name Title
- ---- -----
By /s/ David T. Giddings President, Chief Executive Officer and
---------------------------- Chairman (Principal Executive Officer)
David T. Giddings
By /s/ Laurence L. Betterley Senior Vice President and Chief Financial
---------------------------- Officer (Principal Financial Officer)
Laurence L. Betterley
By /s/ Jill M. Nussbaum Corporate Controller
---------------------------- (Principal Accounting Officer)
Jill M. Nussbaum
By /s/ Gerald L. Cohn Director
----------------------------
Gerald L. Cohn
By /s/Andre de Bruin Director
----------------------------
Andre de Bruin
By /s/ Roy S. Johnson Director
----------------------------
Roy S. Johnson
By /s/ Mark B. Knudson Director
----------------------------
Mark B. Knudson, Ph.D
By /s/ David V. Milligan Director
----------------------------
David V. Milligan
By /s/ Richard A. Norling Director
----------------------------
Richard A. Norling
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EXHIBIT INDEX
Exhibit
Number Description Page
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5 Opinion of Dorsey & Whitney LLP.
23.1 Consent of Dorsey & Whitney LLP (included in Exhibit 5).
23.2 Consent of KPMG Peat Marwick LLP.
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Exhibit 5
[Letterhead of Dorsey & Whitney LLP]
September 18, 1998
Diametrics Medical, Inc.
2658 Patton Road
Roseville, MN 55113
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Diametrics Medical, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on Form
S-8 relating to the sale by the Company from time to time of up to 900,000
shares of Common Stock, $.01 par value per share, of the Company ("the Shares"),
initially issuable pursuant to awards granted under the Company's 1990 Stock
Option Plan and 1993 Directors' Stock Option Plan (the "Plans").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinions
set forth below.
In rendering our opinions set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and, with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
Based on the foregoing, we are of the opinion that the Shares have been
duly authorized and, upon issuance, delivery and payment therefor in accordance
with the terms of the Plans will be validly issued, fully paid and
nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Dorsey & Whitney LLP
KLC
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Diametrics Medical, Inc.:
We consent to the use of our report incorporated herein by reference in
this Registration Statement.
/s/ KPMG Peat Marwick LLP
Minneapolis, Minnesota
September 16, 1998
