As filed with the Securities and Exchange Commission on May 19, 2004
Registration No.
================================================================================
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.
2003 STOCK OPTION 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
Amount to Maximum Maximum
Title of Securities be Registered Offering Price Aggregate Amount of
to be Registered (1) Per Share Offering Price Registration Fee
------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Common Stock 1,500,000 shares $ 32.25 (2) $4,837,500 $6,129.11
----------------------------------------------------------------------------------------------------------------------
(1) The provisions of Rule 416 under the Securities Act of 1933 shall apply
to this Registration Statement, and the number of shares registered on
this Registration Statement automatically shall increase or decrease as
a result of stock splits, stock dividends or similar transactions.
(2) Estimated solely for purposes of determining the registration fee
pursuant to Rule 457(h). The average of the high and low prices of the
Common Stock reported by the Nasdaq National Market on May 18, 2004 was
$32.25.
================================================================================
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:
(a) Registrant's Annual Report on Form 10-K for the year ended
December 31, 2003.
(b) Registrant's Current Report on Form 8-K filed on April 13,
2004.
(c) Registrant's Quarterly Report on Form 10-Q for quarter
ended March 31, 2004.
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.
------- ------------------------------------------
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.
II-1
Item 7. Exemption from Registration Claimed.
------- ------------------------------------
Not applicable.
Item 8. 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 Deloitte & Touche LLP
24.1 Power of Attorney of certain officers and directors
(included on Pages II-4 and II-5).
99.1 ICU Medical Inc. 2003 Stock Option Plan
Item 9. Undertakings.
------- -------------
(i) 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:
(A) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(B) 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;
(C) 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;
II-2
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.
(ii) 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.
(iii) 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.
II-3
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 May 19, 2004.
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
--------- ----- ----
GEORGE A. LOPEZ Chairman of the Board May 19, 2004
------------------------------ and Chief Executive Officer,
George A. Lopez (Principal Executive Officer)
FRANCIS J. O'BRIEN Secretary, Treasurer and May 19, 2004
------------------------------ Chief Financial Officer
Francis J. O'Brien (Principal Financial Officer)
SCOTT E. LAMB Controller May 19, 2004
------------------------------ (Principal Accounting Officer)
Scott E. Lamb
JACK W. BROWN Director May 19, 2004
------------------------------
Jack W. Brown
JOHN J. CONNORS Director May 19, 2004
------------------------------
John J. Connors
MICHAEL T. KOVALCHIK, III Director May 19, 2004
------------------------------
Michael T. Kovalchik, III
JOSEPH R. SAUCEDO Director May 19, 2004
------------------------------
Joseph R. Saucedo
RICHARD H. SHERMAN Director May 19, 2004
------------------------------
Richard H. Sherman
ROBERT S. SWINNEY Director May 19, 2004
------------------------------
Robert S. Swinney
II-4
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 Deloitte & Touche LLP
24.1 Power of Attorney of certain officers and directors (included on Pages
II-4 and II-5).
99.1 ICU Medical Inc. 2003 Stock Option Plan