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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 30, 1999
REGISTRATION NO. 333-____________
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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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RESMED INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 98-0152841
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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10121 CARROLL CANYON ROAD
SAN DIEGO, CALIFORNIA 92131-1109
(Address of Principal Executive Offices including Zip Code)
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1997 EQUITY PARTICIPATION PLAN OF RESMED INC.
(FULL TITLE OF THE PLAN)
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PETER C. FARRELL COPY TO:
CHAIRMAN, PRESIDENT AND PATRICK T. SEAVER, ESQ.
CHIEF EXECUTIVE OFFICER, LATHAM & WATKINS
RESMED INC. 650 TOWN CENTER DRIVE, TWENTIETH FLOOR
10121 CARROLL CANYON ROAD COSTA MESA, CALIFORNIA 92626
SAN DIEGO, CALIFORNIA 92131-1109 (714) 540-1235
(858) 689-2400
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(NAME AND ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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CALCULATION OF REGISTRATION FEE
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PROPOSED
PROPOSED MAXIMUM
AMOUNT MAXIMUM AGGREGATE AMOUNT OF
TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED PER SHARE (1) PRICE(1) FEE
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<S> <C> <C> <C> <C>
Common Stock(2) 4,000,000 $25.167 $100,667,614 $27,986
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h) under the Securities Act of 1933, as amended. The
Proposed Maximum Offering Price is the sum of (i) the product of the
number of options previously granted (1,266,950) and the weighted average
of the exercise price of the options previously granted ($24.718), and
(ii) the product of the remaining options available for future grants
under the plan (2,733,050) and the average of the high and low prices of
the common stock as reported on The Nasdaq Stock Market on Sepember 24,
1999 (which were $26.125 and $24.625, respectively.)
(2) Each share of common stock being registered hereunder, if issued prior to
the termination by the Company of its Rights Agreement, will include one
Common Share Purchase Right. Prior to the occurrence of certain events,
the Common Share Purchase Rights will not be exercisable or evidenced
separately from the common stock.
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PROPOSED SALE TO TAKE PLACE AS SOON AFTER THE EFFECTIVE DATE OF THE REGISTRATION
STATEMENT AS OPTIONS GRANTED UNDER THE PLAN ARE EXERCISED.
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TOTAL PAGES 8
EXHIBIT INDEX ON PAGE 6
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed
with or included in this Form S-8 (by incorporation by reference or otherwise)
in accordance with the rules and regulations of the Securities and Exchange
Commission (the "Commission").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which were filed with the Commission, are
incorporated herein by reference:
(a) The description of the Common Stock contained in the
Company's Registration Statement on Form 8-A filed
with the Commission on September 21, 1999 (File No.
000-26038), including any subsequently filed
amendments and reports updating such description.
(b) The Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1999.
In addition, all documents which we file pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, after the date of this registration
statement and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein
and to be a part of this registration statement from the date of the filing. Any
statement contained in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this registration statement to the extent that a statement contained in this
registration statement, or in any other subsequently filed document which also
is or is deemed to be incorporated by reference in this registration statement,
modifies or supersedes such statement. Any such 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.
ITEM 5. EXPERTS.
The consolidated financial statements and schedule of ResMed Inc. as of
June 30, 1999 and 1998, and for each of the years in the three-year period
ending June 30, 1999, have been incorporated by reference herein in reliance
upon the report of KPMG LLP, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law permits a
Delaware corporation to limit the personal liability of its directors in
accordance with the provisions set forth therein. The Certificate of
Incorporation, as amended, of the Company provides that the personal liability
of its directors shall be limited to the fullest extent permitted by applicable
law.
Section 145 of the Delaware General Corporation Law contains provisions
permitting corporations to indemnify any person who is or was a director,
officer, employee or agent of the corporation, or who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, in
accordance with the provisions set forth therein. The Bylaws of the Company
generally provide for indemnification of such persons to the fullest extent
allowed by applicable law.
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The inclusion of the above provisions in the Certificate of
Incorporation may have the effect of reducing the likelihood of stockholder
derivative suits against directors and may discourage or deter stockholders or
management from bringing a lawsuit against directors for breach of their duty of
care, even though such an action, if successful, might otherwise have benefited
the Company and its stockholders.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits on page 6.
ITEM 9. UNDERTAKINGS.
(a) 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;
(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. 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 prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective 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 (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
Commission by the registrant 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, 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.
(b) 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 (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 the registrant pursuant to the foregoing provisions, or
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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 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 of 1933, as amended,
the Company 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 San Diego, State of California, on this 29th day
of September 1999.
RESMED INC.
By: /s/ PETER C. FARRELL
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Peter C. Farrell
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes and
appoints Peter C. Farrell and Adrian M. Smith as attorneys-in-fact and agents,
each acting alone, with full power of substitution and resubstitution, to sign
on his behalf, individually and in the capacities stated below, and to file any
and all amendments, including post-effective amendments, to this Registration
Statement and other documents in connection therewith, with the Securities and
Exchange Commission, granting to said attorneys-in-fact and agent full power and
authority to perform any other act on behalf of the undersigned required to be
done in the premises.
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities as of
September 29, 1999.
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<CAPTION>
Signature Title
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<S> <C>
/s/ PETER C. FARRELL Chairman of the Board, Chief Executive Officer and Director
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Peter C. Farrell
/s/ ADRIAN M. SMITH Vice President Finance and Chief Financial Officer
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Adrian M. Smith
/s/ CHRISTOPHER G. ROBERTS Director
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Christopher G. Roberts
/s/ MICHAEL A. QUINN Director
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Michael A. Quinn
/s/ GARY W. PACE Director
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Gary W. Pace
/s/ DONAGH W. McCarthy Director
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Donagh W. McCarthy
</TABLE>
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INDEX TO EXHIBITS
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EXHIBIT PAGE
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<C> <S> <C>
4.1 Rights Agreement dated April 23, 1997 between ResMed Inc. and (Note 1)
American Stock Transfer & Trust Company.
4.2 First Amendment to Rights Agreement dated March 19, 1999 between
ResMed Inc. and American Stock Transfer & Trust Company. (Note 2)
5.1 Opinion of Latham & Watkins. 7
23.1 Consent of Latham & Watkins (included in Exhibit 5.1). 7
23.2 Consent of KPMG Independent Auditors. 8
24.1 Power of Attorney (included in the signature page to this
registration statement). 5
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(1) Incorporated by reference to our Current Report on Form 8-K filed with
the Commission on May 6, 1997.
(2) Incorporated by reference to our Current Report on Form 8-K filed with
the Commission on April 14, 1999.
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EXHIBIT 5.1
[Latham & Watkins Letterhead]
September 29, 1999
Board of Directors
ResMed Inc.
10121 Carroll Canyon Road
San Diego, California 92131-1109
Re: Registration Statement on Form S-8
Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended, of an aggregate of 4,000,000 shares (the "Shares") of common stock,
par value $0.004 per share, of ResMed Inc., a Delaware corporation (the
"Company"), issuable under the 1997 Equity Participation Plan of ResMed Inc.
(the "Plan") by the Company on a Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and Exchange
Commission you have requested our opinion with respect to the matters set forth
below.
We have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion. In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all documents submitted to us as
copies.
We are opining herein as to the effect on the subject transaction only
of the General Corporation Law of the State of Delaware, including statutory and
reported decisional law thereunder, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of any other laws.
Subject to the foregoing and in reliance thereon, we are of the opinion
that, as of the date hereof, upon the issuance and sale of the Shares, each in
the manner contemplated by the Registration Statement and in accordance with the
terms of the Plan, and subject to the Company completing all action and
proceedings required on its part to be taken prior to the issuance of the Shares
pursuant to the terms of the Plan and the Registration Statement, including,
without limitation, collection of required payment for the Shares, the Shares
will be legally and validly issued, fully paid and nonassessable securities of
the Company.
This opinion is rendered only to you and is solely for your benefit in
connection with the transactions covered hereby. This opinion may not be relied
upon by you for any other purpose, or furnished to, quoted to or relied upon by
any other person, firm or corporation for any purpose, without our prior written
consent. We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Latham & Watkins
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITOR
The Board of Directors
ResMed Inc.:
We consent to the use of our reports incorporated herein by reference
and to the reference to our firm under the heading "Experts" in the Registration
Statement on Form S-8 of ResMed Inc.
KPMG LLP
San Diego, California
September 29, 1999
