As filed with the Securities and Exchange Commission on April 2, 2001.
Registration No. 333--__________
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under the
Securities Act of 1933
MERIT MEDICAL SYSTEMS, INC.
---------------------------
(Exact name of registrant as specified in its charter)
Utah 87-0447695
---- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1600 West Merit Parkway
South Jordan, Utah 84095
Telephone: (801) 253-1600
-------------------------
(Address of Principal Executive Offices,
including Zip Code)
Merit Medical Systems, Inc. Highly Compensated Deferred Compensation Plan
and
Merit Medical Systems, Inc. Select Highly Compensated Deferred Compensation Plan
(together, the "Plans")
- --------------------------------------------------------------------------------
(Full title of the plan)
Kent W. Stanger Copy to:
Chief Financial Officer Keith L. Pope
Merit Medical Systems, Inc. Parr Waddoups Brown Gee & Loveless
1600 West Merit Parkway 185 South State Street, Suite 1300
South Jordan, Utah 84095 Salt Lake City, Utah 84111
(801) 253-1600 (801) 532-7840
- --------------------------------------------------------------------------------
(Name, address and telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
======================================== ================ =================== ====================== ===================
Proposed Proposed
Amount to be Maximum Offering Maximum Aggregate Amount of
Title of Securities to be Registered Registered Price per Share Offering Price Registration Fee
- ---------------------------------------- ---------------- ------------------- ---------------------- -------------------
Merit Medical Systems, Inc. Highly
Compensated Deferred Compensation Plan (1) N/A N/A $0
- ---------------------------------------- ---------------- ------------------- ---------------------- -------------------
Merit Medical Systems, Inc. Select
Highly Compensation Deferred (1) N/A N/A $0
Compensation Plan
======================================== ================ =================== ====================== ===================
(1) The Deferred Compensation Obligations are unsecured obligations of
Merit Medical Systems, Inc. to pay deferred compensation in the future
in accordance with the terms of the Merit Medical Systems, Inc. Highly
Compensated Deferred Compensation Plan and the Merit Medical Systems,
Inc. Select Highly Compensated Deferred Compensation Plan,
respectively. Pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement registers an indeterminate amount of
interests to be offered or sold pursuant to the employee benefit plans
described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
Information required by Item 1 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 adopted under the Securities Act of 1933, as amended, and the Note to Part I
of Form S-8.
Item 2. Registrant Information and Employee Plan Annual Information.
-----------------------------------------------------------
Information required by Item 2 to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance with Rule
428 adopted under the Securities Act of 1933, as amended, and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
---------------------------------------
The following documents filed by Merit Medical Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission (the "SEC") are hereby
incorporated by reference in this Registration Statement:
(1) he Registrant's Annual Report on Form 10-K for the year ended
December 31, 2000; and
(2) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A, SEC File
No. 000-18592, filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), including any amendment
or report filed under the Exchange Act for the purpose of
updating such description.
In addition, 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
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 a part hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes hereof to the extent that a statement
contained herein (or in any other subsequently filed document which also is
incorporated by reference herein) modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed to constitute a part
hereof except as so modified or superseded.
Item 4. Description of Securities.
-------------------------
Under the Plans, the Registrant will provide eligible employees of the
Registrant and its participating subsidiaries who are selected by the Registrant
("Executives") with the opportunity to agree in advance to the deferral of a
specified percentage or portion of their salaries, commissions and other cash
compensation. The amount of compensation to be deferred by each Executive will
be determined in accordance with the Plans based on elections by each Executive.
All amounts so deferred by an Executive will be credited to a
hypothetical bookkeeping account ("Deferred Compensation Account") and treated
as if invested in certain deemed investment alternatives chosen by the Executive
from a list of investment benchmarks ("Investment Models") designated by the
Registrant under the Plans. The Investment Models may include a deemed
investment that approximates the rate of return on the Registrant's common
stock. Each Deferred Compensation Account balance will be adjusted to reflect
the investment experience, whether positive or negative, of the selected
Investment Models.
2
In addition, each calendar year, the Company may in its discretion
credit an additional, hypothetical amount to each Executive's Deferred
Compensation Account (a "Matching Contribution") equal to a
Registrant-designated percentage or portion of the Executive's elective
deferrals under the Plans for the year. Matching Contributions are subject to
forfeiture if the Executive violates specified noncompetition requirements.
Amounts credited to an Executive's Deferred Compensation Accounts are
payable to the Executive on termination of employment or, if earlier, upon the
attainment of an age that the Executive selects at the time of the deferral.
Distributions may be made singly or in installments, as elected by the Executive
at the time of deferral. Under certain circumstances and subject to certain
penalties, Executives may later accelerate distribution or select an alternate
form of distribution.
The obligations of the Registrant under the Plans (the "Obligations")
will be unsecured general obligations of the Registrant to pay the deferred
compensation in the future in accordance with the terms of the Plans, and will
rank pari passu with other unsecured and unsubordinated indebtedness of the
Registrant from time to time outstanding. The Obligations will be denominated
and be payable in United States dollars.
Upon a change in control as defined in the Plans, the Registrant is
required to establish a trust (the "Trust") and contribute to that Trust the
amount needed to fully fund the Obligations. All rights of Executives under the
Trust will remain unsecured contractual claims subject to the claims of the
Registrant's creditors in the event of the Registrant's insolvency.
An Executive's right or the right of any other person to the
Obligations cannot be assigned, alienated, transferred, pledged or encumbered
except by a written designation of a death beneficiary under the Plans, by
written will, or by the laws of descent and distribution.
The Obligations are not subject to redemption, in whole or in part,
prior to the individual payment dates specified by each Executive except upon
the Executive's earlier termination of employment. However, the Registrant
reserves the right to amend or terminate the Plans at any time, except that no
such amendment or termination shall adversely affect the right of an Executive
to the balance of his or her Deferred Compensation Account as of the date of
such amendment or termination.
Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
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Section 16-10a-902 ("Section 902") of the Utah Revised Business
Corporation Act (the "Revised Act") provides that a corporation may indemnify
any individual who was, is, or is threatened to be made a named defendant or
respondent (a "Party") in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative and whether
formal or informal (a "Proceeding"), because he is or was a director of the
corporation or is or was serving at its request as a director, officer, partner,
trustee, employee, fiduciary or agent of another corporation or other person or
of an employee benefit plan (an "Indemnified Director"), against any obligation
incurred with respect to a Proceeding, including any judgment, settlement,
penalty, fine or reasonable expenses (including attorneys' fees), incurred in
the Proceeding if his conduct was in good faith, he reasonably believed that his
conduct was in, or not opposed to, the best interests of the corporation, and,
in the case of any criminal Proceeding, he had no reasonable cause to believe
his conduct was unlawful; except that (i) indemnification under Section 902 in
connection with a Proceeding by or in the right of the corporation is limited to
payment of reasonable expenses (including attorneys' fees) incurred in
connection with the Proceeding and (ii) the corporation may not indemnify an
Indemnified Director in connection with a Proceeding by or in the right of the
corporation in which the Indemnified Director was adjudged liable to the
corporation, or in connection with any other Proceeding charging that the
Indemnified Director derived an improper personal benefit, whether or not
involving action in his official capacity, in which Proceeding he was adjudged
liable on the basis that he derived an improper personal benefit.
3
Section 16-10a-906 of the Revised Act provides that a corporation may
not indemnify a director under Section 902 unless authorized and a determination
has been made (by the board of directors, a committee of the board of directors
or by the stockholders) that indemnification of the director is permissible in
the circumstances because the director has met the applicable standard of
conduct set forth in Section 902.
Section 16-10a-903 ("Section 903") of the Revised Act provides that,
unless limited by its articles of incorporation, a corporation shall indemnify a
director who was successful, on the merits or otherwise, in the defense of any
Proceeding, or in the defense of any claim, issue or matter in the proceeding,
to which he was a Party because he is or was a director of the corporation,
against reasonable expenses (including attorneys' fees) incurred by him in
connection with the Proceeding or claim.
In addition to the indemnification provided by Sections 902 and 903,
Section 16-10a-905 ("Section 905") of the Revised Act provides that, unless
otherwise limited by a corporation's articles of incorporation, a director may
apply for indemnification to the court conducting the Proceeding or to another
court of competent jurisdiction. On receipt of an application and after giving
any notice the court considers necessary, (i) the court may order mandatory
indemnification under Section 903, in which case the court shall also order the
corporation to pay the director's reasonable expenses to obtain court-ordered
indemnification, or (ii) upon the court's determination that the director is
fairly and reasonably entitled to indemnification in view of all the relevant
circumstances and regardless of whether the director met the applicable standard
of conduct set forth in Section 902, the court may order indemnification as the
court determines to be proper, except that indemnification with respect to
certain Proceedings resulting in a director being found liable for certain
actions against the corporation may be limited to reasonable expenses (including
attorneys' fees) incurred by the director.
Section 16-10a-904 ("Section 904") of the Revised Act provides that a
corporation may pay for or reimburse the reasonable expenses (including
attorneys' fees) incurred by a director who is a Party to a Proceeding in
advance of the final disposition of the Proceeding if (i) the director furnishes
the corporation a written affirmation of his good faith belief that he has met
the applicable standard of conduct described in Section 902, (ii) the director
furnishes to the corporation a written undertaking, executed personally or in
his behalf, to repay the advance if it is ultimately determined that he did not
meet the required standard of conduct, and (iii) a determination is made that
the facts then known to those making the determination would not preclude
indemnification under Section 904.
Section 16-10a-907 of the Revised Act provides that, unless a
corporation's articles of incorporation provide otherwise, (i) an officer of the
corporation is entitled to mandatory indemnification under Section 903 and is
entitled to apply for court ordered indemnification under Section 905, in each
case to the same extent as a director, (ii) the corporation may indemnify and
advance expenses to an officer, employee, fiduciary or agent of the corporation
to the same extent as a director, and (iii) a corporation may also indemnify and
advance expenses to an officer, employee, fiduciary or agent who is not a
director to a greater extent than the right of indemnification granted to
directors, if not inconsistent with public policy, and if provided for by its
articles of incorporation, bylaws, general or specific action of its board of
directors or contract.
The Registrant's Bylaws provide that the Registrant shall, to the
fullest extent permitted, and in the manner required by the law of the State of
Utah, indemnify an individual made, or threatened to be made a party to a
proceeding because he is or was a director, officer, employee or agent of the
Registrant or of another enterprise at the request of the Registrant.
The Registrant's Articles of Incorporation, as amended and restated,
provide that to the fullest extent permitted by the Revised Act or any other
applicable law as now in effect or as it may hereafter be amended, a director of
the Registrant shall not be personally liable to the Registrant or its
Shareholders for monetary damages for any action taken or any failure to take
any action, as a director. The extent to which the Revised Act permits director
liability to be eliminated is governed by Section 16-10a-841 of the Revised Act,
which provides that the liability of a director may not be eliminated or limited
for (i) the amount of financial benefit received by a director to which he is
not entitled; (ii) an intentional infliction of harm on the corporation or its
shareholders; (iii) a violation of Section 16-10a-842 of the Revised Act which
prohibits unlawful distributions by a corporation to its shareholders; or (iv)
an intentional violation of criminal law.
4
Indemnification may be granted pursuant to any other agreement, bylaw,
or vote of shareholders or directors. In addition to the foregoing, the
Registrant maintains insurance from commercial carriers against certain
liabilities which may be incurred by its directors and officers.
The foregoing description is necessarily general and does not describe
all details regarding the indemnification of officers, directors or controlling
persons of the Registrant.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
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See the Exhibit Index on page 8.
Item 9. Undertakings.
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made of the securities registered hereby, a post-effective
amendment to this Registration Statement 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.
(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 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.
5
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 South Jordan, State of Utah on this 23rd day of
March, 2001.
MERIT MEDICAL SYSTEMS, INC.
By /s/ Fred P. Lampropoulos
Fred P. Lampropoulos
President and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and/or officers of Merit Medical Systems,
Inc. (the "Company"), hereby severally constitute and appoint Fred P.
Lampropoulos, Chief Executive Officer, and Kent W. Stanger, Chief Financial
Officer, and each of them individually, with full powers of substitution and
resubstitution, our true and lawful attorneys, with full powers to them and each
of them to sign for us, in our names and in the capacities indicated below, this
Registration Statement on Form S-8 filed with the Securities and Exchange
Commission, and any and all amendments to said registration statement (including
post-effective amendments), and to file or cause to be filed the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys, and each of
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as each of them might or could do in person, and hereby
ratifying and confirming all that said attorneys, and each of them, or their
substitute or substitutes, shall do or cause to be done by virtue of this Power
of Attorney.
6
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated below:
Signature Title Date
- --------- ----- ----
Chairman of the Board,
/s/ Fred P. Lampropoulos President and Chief Executive March 23, 2001
- ------------------------ Officer
Fred P. Lampropoulos
/s/ Kent W. Stanger Secretary-Treasurer, Chief March 23, 2001
- ------------------- Financial Officer and Director
Kent W. Stanger
/s/ Michael E. Stillabower Director March 26, 2001
- --------------------------
Michael E. Stillabower
/s/ James J. Ellis Director March 27, 2001
- ------------------
James J. Ellis
/s/ Rex C. Bean Director March 27, 2001
- ---------------
Rex C. Bean
/s/ Richard W. Edelman Director March 26, 2001
- ----------------------
Richard W. Edelman
7
MERIT MEDICAL SYSTEMS, INC.
EXHIBIT INDEX
Regulation S-K
Exhibit No. Description
- -------------------- ---------------------------------------------------------
4.1* Articles of Incorporation as amended and restated.
(Incorporated herein by reference from the Form 10-Q
filed by the Registrant for the Quarter ended June 30,
1996). Amendment to Articles of Incorporation which
became effective June 18, 1997. (Incorporated herein
by reference from the Form 10-Q filed by the Registrant
for the Quarter ended June 30, 1997). Amendment to
Articles of Incorporation which became effective
September 11, 1997. (Incorporated herein by reference
from the Form S-8 filed by the Registrant on December
3, 1999).
4.2* Bylaws of the Registrant. (Incorporated by reference
from the Form S-18 filed by the Registrant on October
19, 1989).
5 Opinion of Parr Waddoups Brown Gee & Loveless, a
professional corporation, as to the legality of the
securities offered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Parr Waddoups Brown Gee & Loveless, a
professional corporation (included in Exhibit No. 5).
24 Powers of Attorney (included on signature page hereto).
- ---------------------------------
* Incorporated by reference.
8
Exhibit 5
March 30, 2001
The Board of Directors of Merit Medical Systems, Inc.
1600 West Merit Parkway
South Jordan, Utah 84095
Re: Registration Statement on Form S-8 filed by Merit Medical Systems, Inc.
with respect to the Merit Medical Systems, Inc. Highly Compensated
Deferred Compensation Plan and Merit Medical Systems, Inc. Select
Highly Compensated Deferred Compensation Plan.
Gentlemen:
We have acted as counsel to Merit Medical Systems, Inc., a Utah
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission of the Company's Registration Statement
on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as
amended, relating to up to the Company's obligations (the "Deferred Compensation
Obligations") under the Merit Medical Systems, Inc. Highly Compensated Deferred
Compensation Plan and Merit Medical Systems, Inc. Select Highly Compensated
Deferred Compensation Plan (the "Plans").
In that capacity, we have examined the originals or copies, certified
or otherwise identified to our satisfaction, of the articles of incorporation
and the by-laws of the Company, as amended through the date hereof, resolutions
of the Company's Board of Directors and its Compensation Committee, and such
other documents and corporate records relating to the Company and the Deferred
Compensation Obligations as we have deemed appropriate. In all cases, we have
assumed the legal capacity of each natural person signing any of the documents
and corporate records examined by us, the genuineness of signatures, the
authenticity of documents submitted to us as originals, the conformity to
authentic original documents of documents submitted to us as copies and the
accuracy and completeness of all corporate records and other information made
available to us by the Company.
Based upon the foregoing and consideration of such questions of law as
we have deemed relevant, we are of the opinion that the Deferred Compensation
Obligations will be, when created in accordance with the terms of the Plans,
valid and binding obligations of the Company, enforceable in accordance with the
terms of the Plans, subject to applicable bankruptcy, moratorium, insolvency,
fraudulent transfer, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equitable principles.
We hereby consent to the filing of the opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ PARR WADDOUPS BROWN GEE & LOVELESS
--------------------------------------
PARR WADDOUPS BROWN GEE & LOVELESS
9
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Merit Medical Systems, Inc. on Form S-8 of our report dated February 23, 2001,
appearing in the Annual Report on Form 10-K of Merit Medical Systems, Inc. for
the year ended December 31, 2000.
/s/ DELOITTE & TOUCHE LLP
- -------------------------
DELOITTE & TOUCHE LLP
Salt Lake City, Utah
March 29, 2001
10