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As filed with the Securities and Exchange Commission on March 21, 2000
Registration No. 333-78059
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-8
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
________________
Data Critical Corporation
(Exact name of Registrant as specified in its charter)
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<S> <C>
Delaware 91-1901482
(State of incorporation) (I.R.S. Employer Identification No.)
</TABLE>
19820 North Creek Parkway, Suite 100
Bothell, Washington 98011
_______________
1999 Employee Stock Purchase Plan
1999 Stock Option Plan
1994 Stock Option Plan
1999 Directors' Stock Option Plan
(Full title of the Plans)
_______________
Jeffrey S. Brown
President and Chief Executive Officer
Data Critical Corporation
19820 North Creek Parkway, Suite 100, Bothell, Washington 98011
(425) 482-7000
(Name, address and telephone number, including area code, of agent for service)
_______________
Copy to:
Craig E. Sherman
Venture Law Group
A Professional Corporation
4750 Carillon Point
Kirkland, Washington 98033
(425) 739-8700
(Calculation of Registration Fee on following page)
1
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Maximum Amount Maximum Maximum Amount of
to be Offering Price Aggregate Registration
Title of Securities to be Registered Registered(1) Per Share Offering Price Fee
- ----------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1999 Employee Stock Purchase Plan
Common Stock,
$0.001 par value.......................... 205,647 Shares $32.0875(2) $ 6,598,698 $1,742.06
1999 Stock Option Plan
Common Stock,
$0.001 par value.......................... 955,454 Shares $ 12.346(3) $11,796,035 $3,114.15
Common Stock,
$0.001 par value.......................... 255,841 Shares $ 37.75(4) $ 9,657,998 $2,549.71
1994 Stock Option Plan
Common Stock,
$0.001 par value.......................... 863,339 Shares $ 1.539(3) $ 1,328,679 $ 350.77
1999 Directors' Stock Option Plan
Common Stock,
$0.001 par value........................... 16,125 Shares $ 6.00(3) $ 96,750 $ 25.54
Common Stock,
$0.001 par value.......................... 83,875 Shares $ 37.75(4) $ 3,166,281 $ 835.90
TOTAL 2,380,281 Shares $32,644,441 $8,618.13
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_______________________
(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under any of the Plans being registered
pursuant to this Registration Statement by reason of any stock dividend,
stock split, recapitalization or any other similar transaction effected
without the receipt of consideration which results in an increase in the
number of the Registrant's outstanding shares of Common Stock.
(2) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
(the "Securities Act") solely for the purpose of calculating the
registration fee. The computation is based upon the average of the high
and low sale prices of the Common Stock as reported on The Nasdaq National
Market on March 15, 2000 multiplied by 85%, which is the percentage of the
trading purchase price applicable to purchases under the referenced Plan.
(3) Computed in accordance with Rule 457(h) under the Securities Act solely for
the purpose of calculating the registration fee. Computation based on the
weighted average per share exercise price (rounded to nearest cent) of
outstanding options under the referenced plan, the shares issuable under
which are registered hereby.
(4) Estimated in accordance with Rule 457(h) under the Securities Act solely
for the purpose of calculating the registration fee. The computation with
respect to unissued options is based upon the average high and low sale
prices of the Common Stock as reported on the Nasdaq National Market on
March 15, 2000.
2
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference:
(a) The Registrant's Prospectus filed on November 9, 1999 pursuant to Rule
424(b) of the Securities Act, which contains audited financial statements for
the Registrant's latest fiscal year for which such statements have been filed.
(b) The Registrant's 8-K filed on December 22, 1999 pursuant to Section 13
or 15(d) of the Securities Exchange Act, as subsequently amended by Registrant's
8-K/A filed on March 1, 2000.
(c) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed with the Commission under
Section 12 of the Securities Exchange Act of 1934 (the "Exchange Act") on
October 28, 1999, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Registrant 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 hereby 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 part
hereof from the date of filing such documents.
Item 4. Description of Securities. Not applicable.
-------------------------
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
The validity of the common stock offered hereby will be passed upon for
Data Critical by Venture Law Group, a Professional Corporation, Kirkland,
Washington. Craig E. Sherman, a director of Venture Law Group, is the
secretary of Data Critical. As of the date of this Registration Statement,
certain directors of Venture Law Group, and an investment partnership affiliated
with Venture Law Group own an aggregate of 2,500 shares of Data Critical's
common stock.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
The Registrant's Certificate of Incorporation reduces the liability of a
director to the corporation or its shareholders for monetary damages for
breaches of his or her fiduciary duty of care to the fullest extent permissible
under Delaware law. The Bylaws of the Registrant further provide for
indemnification of corporate agents to the maximum extent permitted by the
Delaware General Corporation Law. In addition, the Registrant has entered into
Indemnification Agreements with its officers and directors.
Item 7. Exemption from Registration Claimed. Not applicable.
-----------------------------------
Item 8. Exhibits.
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Exhibit
Number
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<C> <S>
5.1 Opinion of Venture Law Group, a Professional Corporation.
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included on signature page to Registration
Statement).
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_______________
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Item 9. Undertakings.
------------
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 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.
(2) that, for purposes of determining any 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 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.
The undersigned 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 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.
Insofar as the 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 a
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered hereunder, the Registrant will, unless in the opinion of its counsel
the question has already been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question of 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.
[Signature Pages Follow]
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant,
Data Critical Corporation, a corporation organized and existing under the laws
of the State of Delaware, 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 Bothell, State of Washington, on this
21st day of March, 2000.
Data Critical Corporation
By: /s/ Jeffrey S. Brown
-----------------------------------
Jeffrey S. Brown
President and Chief Executive Officer
5
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Jeffrey S. Brown and Michael E. Singer,
jointly and severally, his or her attorneys-in-fact and agents, each with the
power of substitution and resubstitution, for him or her and in his or her name,
place or stead, in any and all capacities, to sign any amendments to this
Registration Statement on Form S-8, and to file such amendments, together with
exhibits and other documents in connection therewith, with the Securities and
Exchange Commission, granting to each 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 as he or she might or could do in
person, and ratifying and confirming all that the attorney-in-facts and agents,
or his or her substitute or substitutes, may 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.
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Signature Title Date
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<S> <C> <C>
/s/ Jeffrey S. Brown President, Chief Financial Officer and March 21, 2000
- --------------------------------- Director (Principal Executive Officer)
Jeffrey S. Brown
/s/ Michael E. Singer Vice President, Chief Financial Officer March 21, 2000
- --------------------------------- (Principal Financial and Accounting Officer)
Michael E. Singer
/s/ David E. Albert Director March 21, 2000
- ---------------------------------
David E. Albert, M.D.
/s/ George M. Middlemas Director March 21, 2000
- ---------------------------------
George M. Middlemas
/s/ Richard Earnest Director March 21, 2000
- ---------------------------------
Richard Earnest
/s/ Ronald Kase Director March 21, 2000
- ---------------------------------
Ronald Kase
/s/ David B. Swedlow Director March 21, 2000
- ---------------------------------
David B. Swedlow
</TABLE>
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INDEX TO EXHIBITS
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Exhibit
Number
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<C> <S>
5.1 Opinion of Venture Law Group, a Professional Corporation
23.1 Consent of Venture Law Group, a Professional Corporation (included in
Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney (included in signature page to Registration
Statement).
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1
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EXHIBIT 5.1
March 21, 2000
Data Critical Corporation
19820 North Creek Parkway, Suite 100
Bothell, Washington 98011
Registration Statement on Form S-8
----------------------------------
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the "Registration
Statement") filed by you with the Securities and Exchange Commission (the
"Commission") on March 21, 2000 in connection with the registration under the
Securities Act of 1933, as amended, of a total of 2,380,281 shares of your
Common Stock (the "Shares") issued pursuant to or reserved for issuance under
the 1999 Employee Stock Purchase Plan, the 1999 Stock Option Plan, the 1994
Stock Option Plan and the 1999 Directors Stock Option Plan. As your counsel in
connection with this transaction, we have examined the proceedings taken and are
familiar with the proceedings proposed to be taken by you in connection with the
sale and issuance of the Shares.
It is our opinion that upon conclusion of the proceedings being taken or
contemplated by us, as your counsel, to be taken prior to the issuance of the
Shares, and upon completion of the proceedings being taken in order to permit
such transactions to be carried out in accordance with the securities laws of
the various states where required, the Shares when issued and sold in the manner
described in the Registration Statement will be legally and validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to the use of our name wherever appearing in the
Registration Statement, including the Prospectus constituting a part thereof,
and in any amendment thereto.
Very truly yours,
VENTURE LAW GROUP
A Professional Corporation
/s/ Venture Law Group
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Exhibit 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated May 7,
1999, included in Data Critical Corporation's registration statement on Form S-1
filed on November 9, 1999, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
Seattle, Washington,
March 20, 2000
