As filed with the Securities and Exchange Commission on March 27, 2001
Registration No.
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
__________
ICU MEDICAL, INC.
(Exact name of Registrant as specified in its charter)
Delaware 33-0022692
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
951 Calle Amanecer
San Clemente, California 92673
(Address of Registrant's Principal Executive Offices) (Zip Code)
ICU MEDICAL, INC.
1993 STOCK INCENTIVE PLAN
(Full Title of Plan)
__________
FRANCIS J. O'BRIEN
Secretary, Treasurer and Chief Financial Officer
ICU Medical, Inc.
951 Calle Amanecer
San Clemente, California 92673
(Name and Address of Agent for Service)
(949) 366-2183
(Telephone Number, Including Area Code, of Agent for Service)
__________
With a Copy to:
STEPHEN E. NEWTON, Esq.
Heller Ehrman White & McAuliffe LLP
601 South Figueroa Street
Los Angeles, California 90017
(213) 689-0200
__________
CALCULATION OF REGISTRATION FEE
- ------------------------- ---------------------- ----------------------- ---------------- ----------------
Proposed Proposed
Maximum Maximum
Title of Securities Amount to Offering Price Aggregate Amount of
to be Registered be Registered Per Share Offering Price Registration Fee
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Common Stock 1,500,000 shares $33.5625 (1) $50,343,750 $12,585.94
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(1) Estimated solely for purposes of determining the registration fee based
upon the average of the high and low prices of the Common Stock
reported by the Nasdaq National Market on March 26, 2001
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
- ------------------------------------------------
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), subsequent to the date of the filing of this Registration Statement and
prior to the filing of a post-effective amendment to the Registration Statement
which indicates that all securities registered under this Registration Statement
have been sold or which deregisters all securities then remaining unsold shall
be deemed to be incorporated by reference into this Registration Statement and
to be a part hereof from the date of the filing of such documents.
The following documents filed with the Commission (File No. 0-19974)
are incorporated in this Registration Statement by reference:
1. Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000.
2. Registrant's Current Report on Form 8-K dated March 1,
2001.
There is incorporated in this Registration Statement by reference the
description of Registrant's Common Stock contained in Registrant's Prospectus
(Subject to Completion) in Registrant's Registration Statement on Form S-1
(Registration No. 33-45734) filed with the Commission on February 14, 1992,
which description was incorporated by reference into Registrant's Registration
Statement on Form 8-A dated March 19, 1992 filed with the Commission under the
Exchange Act on March 21, 1992.
ITEM 4. DESCRIPTION OF SECURITIES.
- ----------------------------------
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
- -----------------------------------------------
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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Section 145 of the General Corporation Law of Delaware (the "GCL")
permits, and under certain circumstances requires, Registrant to indemnify its
directors, officers, employees and agents subject to certain conditions and
limitations. Article VII of Registrant's Bylaws requires it to indemnify
directors and permits it to indemnify officers, employees and agents to the full
extent permitted by the GCL. Registrant has also entered into Indemnity
Agreements with its officers pursuant to which Registrant has agreed to
indemnify them. The Indemnity Agreements require indemnification of officers,
under circumstances in which such indemnification would otherwise be
discretionary, unless Registrant sustains the burden of proving that the officer
has not met the applicable standard of conduct. Registrant is not obligated to
make any payment prohibited by law. Registrant's Bylaws, together with the
Indemnity Agreements, expand its indemnification obligations to the full extent
permitted by law. While Delaware law contemplates some expansion of
indemnification beyond what is specifically authorized by the GCL, the courts
have not yet established the boundaries of permissible indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
- --------------------------------------------
Not applicable.
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ITEM 8. EXHIBITS.
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4 Not applicable.
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
15 Not applicable.
23.1 Consent of Heller Ehrman White & McAuliffe LLP
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney of certain officers and directors
(included on Page II-4).
28 Not applicable.
29 Not applicable.
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 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 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) do not
apply if the registration statement is on Form S-3 or Form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 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 bonafide 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 of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 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 bonafide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 Securities and
Exchange Commission such indemnification is against public policy as expressed
in the 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 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, 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 San Clemente, State of California, on March 27, 2001.
ICU MEDICAL, INC.
By /S/ GEORGE A. LOPEZ
---------------------------
George A. Lopez
Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints George A. Lopez and Francis J. O'Brien,
or either of them, his or her attorneys-in-fact, with full power of
substitution, for him in any and all capacities, to sign any amendments to this
Registration Statement, and to file the same, with exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that said attorneys-in-fact, or their
substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/S/GEORGE A. LOPEZ Chairman of the Board March 27, 2001
- ----------------------------- and Chief Executive Officer,
George A. Lopez (Principal Executive Officer)
/S/FRANCIS J. O'BRIEN Treasurer, Chief Financial Officer March 27, 2001
- ----------------------------- (Principal Financial and Accounting Officer)
Francis J. O'Brien
/S/JACK W. BROWN Director March 27, 2001
- -----------------------------
Jack W. Brown
/S/JOHN J. CONNORS Director March 27, 2001
- -----------------------------
John J. Connors
/S/MICHAEL T. KOVALCHIK, III Director March 27, 200
- -----------------------------
Michael T. Kovalchik, III
/S/RICHARD H. SHERMAN Director March 27, 2001
- -----------------------------
Richard H. Sherman
/S/ROBERT S. SWINNEY Director March 27, 2001
- -----------------------------
ROBERT S. SWINNEY
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EXHIBIT INDEX
EXHIBITS
5.1 Opinion of Heller Ehrman White & McAuliffe LLP.
23.1 Consent of Heller Ehrman White & McAuliffe LLP
(included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP
24.1 Power of Attorney of certain officers
and directors (included on Page II-4).
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Exhibit 5.1
Main (213) 689-0200
Fax (213) 614-1868
24506-0012
March 28, 2001
ICU Medical, Inc.
951 Calle Amanecer
San Clemente, CA 92673
RE: REGISTRATION STATEMENT ON FORM S-8
Ladies and Gentlemen:
We have acted as counsel to ICU Medical, Inc., a Delaware corporation
(the "Company"), in connection with the Registration Statement on Form S-8 (the
"Registration Statement") which the Company proposes to file with the Securities
and Exchange Commission on March 28, 2001 for the purpose of registering under
the Securities Act of 1933, as amended, 1,500,000 shares of its Common Stock,
par value $0.10 (the "Shares"), issuable on the exercise of options granted or
to be granted under the Company's Amended and Restated 1993 Stock Incentive Plan
(the "Plan".
We have assumed the authenticity of all records, documents and
instruments submitted to us as originals, the genuineness of all signatures, the
legal capacity of natural persons and the conformity to the originals of all
records, documents and instruments submitted to us as copies.
In rendering our opinion, we have examined the following records,
documents and instruments:
(a) The Certificate of Incorporation of the Company, certified
by the Delaware Secretary of State as of June 29, 1995, and certified
to us by an officer of the Company as being complete and in full force
as of the date of this opinion;
(b) The Bylaws of the Company certified to us by an officer of
the Company as being complete and in full force and effect as of the
date of this opinion;
(c) A Certificate of an officer of the Company (i) attaching
records certified to us as constituting all records of proceedings and
actions of the Board of Directors, including any committee thereof, and
stockholders of the Company relating to the Shares, and (ii) certifying
as to certain factual matters;
(d) The Registration Statement;
(e) Advice from ChaseMellon Shareholder Services, the
Company's transfer agent, as to the number of shares of the Company's
Common Stock that were outstanding on March 27, 2001.
This opinion is limited to the federal law of the United States of
America and the General Corporation Law of the State of Delaware, and we
disclaim any opinion as to the laws of any other jurisdiction. We further
disclaim any opinion as to any other statute, rule, regulation, ordinance, order
or other promulgation of any other jurisdiction or any regional or local
governmental body or as to any related judicial or administrative opinion.
Heller Ehrman White & McAuliffe LLP 601 S. Figueroa Street, 40th Floor
Los Angeles, CA 90017-5758 www.hewm.com
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San Francisco Silicon Valley LOS ANGELES San Diego Seattle Portland Anchorage
New York Washington D.C. Hong Kong Singapore
Affiliated Carnelutti Offices: Milan Rome Paris Padua Naples
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[HellerEhrman ICU Medical, Inc.
Attorneys March 27, 2001
Logo Here] Page 2
Based upon the foregoing and our examination of such questions of law
as we have deemed necessary or appropriate for the purpose of this opinion, and
assuming that (i) the Registration Statement becomes and remains effective
during the period when the Shares are offered and issued, (ii) the Shares are
issued in accordance with the Plan, (iii) appropriate certificates evidencing
the Shares are executed and delivered by the Company, and (iv) all applicable
securities laws are complied with, it is our opinion that when issued by the
Company, in the manner provided in the Plan, the Shares will be legally issued,
fully paid and nonassessable.
This opinion is rendered to you in connection with the Registration
Statement and is solely for your benefit. This opinion may not be relied upon by
you for any other purpose, or relied upon by any other person, firm, corporation
or other entity for any purpose, without our prior written consent. We disclaim
any obligation to advise you of any change of law that occurs, or any facts of
which we may become aware, after the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/S/ HELLER EHRMAN WHITE & MCAULIFFE LLP
Heller Ehrman White & McAuliffe LLP
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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 of our report dated January 25, 2001
included in ICU Medical, Inc.'s Form 10-K for the year ended December 31, 2000
and to all references to our Firm included in this registration statement.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Orange County, California
MARCH 27, 2001
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