As filed with the Securities and Exchange Commission on December 3, 1999
Registration No. 333-
- --------------------------------------------------------------------------------
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
(Address of Principal Executive Offices,
including Zip Code)
---------------------
MERIT MEDICAL SYSTEMS, INC.
1999 OMNIBUS STOCK INCENTIVE PLAN
---------------------
Kent W. Stanger Copy to:
Chief Financial Officer RICHARD G. BROWN
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
Maximum Maximum Amount of
Amount to be Offering Price Aggregate Registration Fee
Title of Securities to be Registered Registered per Share(1) Offering Price(1) (1)
- ------------------------------------------------------------------------------------------------------------------------
Common Shares, no par value........... 1,600,000 shares $6.72 $10,746,185 $3171
====================================== ======================= ================ =================== ===================
(1) Estimated pursuant to Rule 457(h)(1) and 457(c). With respect to 96,100
shares of the 1,600,000 being registered, the offering price per share,
aggregate offering price and registration fee have been calculated based on the
exercise price at which options with respect to such shares may be exercised.
With respect to the remaining 1,503,900 shares being registered, for which the
offering price is not known, the offering price per share, aggregate offering
price and registration fee are computed on the basis of the average of the high
and low prices for the Registrant's Common Shares as reported by the NASDAQ
Stock Market (National Market) as of November 30, 1999.
1
- --------------------------------------------------------------------------------
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information.*
----------------------
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with Rule 428 under the Securities Act of 1933,
as amended (the "Securities Act"), and the Note to Part I of
Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
------------------------------------------------
The following documents filed by Merit Medical Systems, Inc. (the
"Registrant") with the Securities and Exchange Commission are hereby
incorporated by reference in this Registration Statement:
(1) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) The Registrant's Quarterly Report on Form 10-Q for the Quarter
ended March 31, 1999;
(3) The Registrant's Quarterly Report on Form 10-Q for the Quarter
ended June 30, 1999;
(4) The Registrant's Quarterly Report on Form 10-Q for the Quarter
ended September 30, 1999;
(5) The Registrant's Current Report on Form 8-K dated September 7,
1999; and
(6) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A 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.
2
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 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.
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
3
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.
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.
---------
See the Exhibit Index on page 9.
4
Item 9. Undertakings.
-------------
(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:
(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 this 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 this
Registration Statement;
(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 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 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 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 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 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
5
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.
6
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 November 24, 1999.
MERIT MEDICAL SYSTEMS, INC.
By:/s/ Fred P. Lampropoulos
---------------------------------------------
Fred P. Lampropoulos, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
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. Each person whose signature to this
Registration Statement appears below hereby constitutes and appoints Fred P.
Lampropoulos and Kent W. Stanger, and each of them, as his true and lawful
attorney-in-fact and agent, with full power of substitution, to sign on his
behalf individually and in the capacity stated below and to perform any acts
necessary to be done in order to file all amendments and post-effective
amendments to this Registration Statement, and any and all instruments or
documents filed as part of or in connection with this Registration Statement or
the amendments thereto and each of the undersigned does hereby ratify and
confirm all that said attorney-in-fact and agent, or his substitutes, shall do
or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
/s/ Fred P. Lampropoulos Chairman of the Board, President November 24, 1999
- ------------------------ and Chief Executive Officer
Fred P. Lampropoulos
/s/ Kent W.Stanger Secretary-Treasurer, Chief November 24, 1999
- ------------------ Financial Officer and Director
Kent W. Stanger
/s/Michael E. Stillabower Director November 26, 1999
- -------------------------
Michael E. Stillabower
/s/ Director November __, 1999
- ---------------
James J. Ellis
7
/s/ Director November __, 1999
- ------------
Rex C. Bean
/s/ Richard W. Edelman Director November 24, 1999
- ----------------------
Richard W. Edelman
8
MERIT MEDICAL SYSTEMS, INC.
EXHIBIT INDEX
Regulation S-K Sequential
Exhibit No. Description Page No.
- ---------------------- ---------------------------------------------------------------- ------------------
4.1* Articles of Incorporation as amended and restated. 10
(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).
Amendement to Articles of Incorporation which become
effective September 11, 1997.
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, 14
a professional corporation, as to the legality of the
securities offered.
23.1 Consent of Deloitte & Touche LLP. 15
23.2 Consent of Parr Waddoups Brown Gee & Loveless,
a professional corporation (included in Exhibit No.
5).
24 Powers of Attorney (included on page 7 hereof).
- ---------------------------------
* Incorporated by reference
9
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
MERIT MEDICAL SYSTEMS, INC.
PURSUANT TO THE PROVISIONS of the Revised Utah Business Corporation
Act, Merit Medical Systems, Inc., a Utah corporation, does hereby adopt the
following Articles of Amendment to its Articles of Incorporation:
1. The name of the Corporation is Merit Medical Systems, Inc.
2. The Articles of Incorporation of the Corporation, as previously
amended, are hereby further amended by adding a new paragraph A.6. to Article IV
setting forth the number, designation, relative rights, limitations and
preferences of the shares of Series A Junior Participating Preferred Stock of
the Corporation as fixed by the Board of Directors of the Corporation, which
paragraph A.6. shall read as follows:
6. Series A Junior Participating Preferred Stock:
(a) Designation and Amount. The shares of such series
shall be designated as "Series A Junior Participating Preferred Stock"
(the "Series A Preferred Stock") and the number of shares constituting
the Series A Preferred Stock shall be 1,000,000. Such number of shares
may be increased or decreased by resolution of the Board of Directors;
provided, that no decrease shall reduce the number of shares of Series
A Preferred Stock to a number less than the number of shares then
outstanding plus the number of shares reserved for issuance upon the
exercise of outstanding options, rights or warrants or upon the
conversion of any outstanding securities issued by the Corporation
convertible into Series A Preferred Stock.
(b) Dividends and Distributions.
(i) Subject to the rights of the holders of
any shares of any series of Preferred Stock (or any similar stock)
ranking prior and superior to the Series A Preferred Stock with respect
to dividends, the holders of shares of Series A Preferred Stock, in
preference to the holders of shares of Common Stock, no par value (the
"Common Stock"), of the Corporation, and of any other junior stock,
shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly
dividends payable in cash on the first day of March, June, September
and December in each year (each such date being referred to herein as a
"Quarterly Dividend Payment Date"), commencing on the first Quarterly
Dividend Payment Date after the first issuance of a share or fraction
of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $1 or (b) subject to
the provision for adjustment hereinafter set forth, 100 times the
aggregate per share amount of all cash dividends, and 100 times the
aggregate per share amount (payable in kind) of all non-cash dividends
or other distributions, other than a dividend payable in shares of
Common Stock or a subdivision of the outstanding shares of Common Stock
10
(by reclassification or otherwise), declared on the Common Stock since
the immediately preceding Quarterly Dividend Payment Date or, with
respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Preferred
Stock. In the event the Corporation shall at any time declare or pay
any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision or combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each such case the
amount to which holders of shares of Series A Preferred Stock were
entitled immediately prior to such event under clause (b) of the
preceding sentence shall be adjusted by multiplying such amount by a
fraction, the numerator of which is the number of shares of Common
Stock outstanding immediately after such event and the denominator of
which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
(ii) The Corporation shall declare a dividend
or distribution on the Series A Preferred Stock as provided in
paragraph (i) of this Section immediately after it declares a dividend
or distribution on the Common Stock (other than a dividend payable in
shares of Common Stock); provided that, in the event no dividend or
distribution shall have been declared on the Common Stock during the
period between any Quarterly Dividend Payment Date and the next
subsequent Quarterly Dividend Payment Date, a dividend of $1 per share
on the Series A Preferred Stock shall nevertheless be payable on such
subsequent Quarterly Dividend Payment Date.
(iii) Dividends shall begin to accrue and be
cumulative on outstanding shares of Series A Preferred Stock from the
Quarterly Dividend Payment Date next preceding the date of issue of
such shares, unless the date of issue of such shares is prior to the
record date for the first Quarterly Dividend Payment Date, in which
case dividends on such shares shall begin to accrue from the date of
issue of such shares, or unless the date of issue is a Quarterly
Dividend Payment Date or is a date after the record date for the
determination of holders of shares of Series A Preferred Stock entitled
to receive a quarterly dividend and before such Quarterly Dividend
Payment Date, in either of which events such dividends shall begin to
accrue and be cumulative from such Quarterly Dividend Payment Date.
Accrued but unpaid dividends shall not bear interest. Dividends paid on
the shares of Series A Preferred Stock in an amount less than the total
amount of such dividends at the time accrued and payable on such shares
shall be allocated pro rata on a share-by-share basis among all such
shares at the time outstanding. The Board of Directors may fix a record
date for the determination of holders of shares of Series A Preferred
Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be not more than 60 days
prior to the date fixed for the payment thereof.
(c) Voting Rights. Except as set forth herein or
otherwise required by law, holders of shares of Series A Preferred
Stock shall have no voting rights and their consent shall not be
required for taking any corporate action.
(d) Certain Restrictions. Whenever quarterly
dividends or other dividends or distributions payable on the Series A
Preferred Stock as provided in subparagraph (b) are in arrears,
thereafter and until all accrued and unpaid dividends and
distributions, whether or not declared, on shares of Series A Preferred
Stock outstanding shall have been paid in full, the Corporation shall
not:
(i) declare or pay dividends, or make any
other distributions, on any shares of stock ranking junior (either as
to dividends or upon liquidation, dissolution or winding up) to the
Series A Preferred Stock;
(ii) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on a parity (either
as to dividends or upon liquidation, dissolution or winding up) with
the Series A Preferred Stock, except dividends paid ratably on the
Series A Preferred Stock and all such parity stock on which dividends
are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
11
(iii) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking junior (either as to
dividends or upon liquidation, dissolution or winding up) to the Series
A Preferred Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any such junior stock
in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or
(iv) redeem or purchase or otherwise acquire
for consideration any shares of Series A Preferred Stock, or any shares
of stock ranking on a parity with the Series A Preferred Stock, except
in accordance with a purchase offer made in writing or by publication
(as determined by the Board of Directors) to all holders of such shares
upon such terms as the Board of Directors, after consideration of the
respective annual dividend rates and other relative rights and
preferences of the respective series and classes, shall determine in
good faith will result in fair and equitable treatment among the
respective series or classes.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for consideration any
shares of stock of the Corporation unless the Corporation could, under
this subparagraph (d), purchase or otherwise acquire such shares at
such time and in such manner.
(e) Reacquired Shares. Any shares of Series A
Preferred Stock purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly after the
acquisition thereof. All such shares shall upon their cancellation
become authorized but unissued shares of Preferred Stock and may be
reissued as part of a new series of Preferred Stock subject to the
conditions and restrictions on issuance set forth herein, in the
Articles of Incorporation, or in any amendment to the Articles of
Incorporation creating a series of Preferred Stock or any similar stock
or as otherwise required by law.
(f) Liquidation, Dissolution or Winding Up.Upon any
liquidation, dissolution or winding up of the Corporation, no
distribution shall be made (1) to the holders of shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Preferred Stock unless, prior thereto,
the holders of shares of Series A Preferred Stock shall have received
$100 per share, plus an amount equal to accrued and unpaid dividends
and distributions thereon, whether or not declared, to the date of such
payment, provided that the holders of shares of Series A Preferred
Stock shall be entitled to receive an aggregate amount per share,
subject to the provision for adjustment hereinafter set forth, equal to
100 times the aggregate amount to be distributed per share to holders
of shares of Common Stock, or (2) to the holders of shares of stock
ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred Stock and all such
parity stock in proportion to the total amounts to which the holders of
all such shares are entitled upon such liquidation, dissolution or
winding up. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
aggregate amount to which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under the proviso in
clause (1) of the preceding sentence shall be adjusted by multiplying
such amount by a fraction the numerator of which is the number of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(g) Consolidation, Merger, etc. In case the
Corporation shall enter into any consolidation, merger, combination or
other transaction in which the shares of Common Stock are exchanged for
or changed into other stock or securities, cash and/or any other
property, then in any such case each share of Series A Preferred Stock
shall at the same time be similarly exchanged or changed into an amount
per share, subject to the provision for adjustment hereinafter set
forth, equal to 100 times the aggregate amount of stock, securities,
cash and/or any other property (payable in kind), as the case may be,
12
into which or for which each share of Common Stock is changed or
exchanged. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock,
or effect a subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification or otherwise
than by payment of a dividend in shares of Common Stock) into a greater
or lesser number of shares of Common Stock, then in each such case the
amount set forth in the preceding sentence with respect to the exchange
or change of shares of Series A Preferred Stock shall be adjusted by
multiplying such amount by a fraction, the numerator of which is the
number of shares of Common Stock outstanding immediately after such
event and the denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such event.
(h) No Redemption. The shares of Series A Preferred
Stock shall not be redeemable.
(i) Rank. The Series A Preferred Stock shall rank,
with respect to the payment of dividends and the distribution of
assets, junior to all series of any other class of the Corporation's
Preferred Stock.
(j) Amendment. The Articles of Incorporation of the
Corporation shall not be amended in any manner which would materially
alter or change the powers, preferences or special rights of the Series
A Preferred Stock so as to affect them adversely without the
affirmative vote of the holders of at least two-thirds of the
outstanding shares of Series A Preferred Stock, voting together as a
single class.
3. The foregoing amendment to Revised Articles of Incorporation was
authorized by the Board of Directors of the Corporation at a meeting of such
Board of Directors duly convened and held on August 27, 1997 at which meeting a
quorum was present and acting throughout.
4. No action of shareholders was taken in connection with the foregoing
amendment. Pursuant to Section 16-10a-602 of the Revised Business Corporation
Act and Article IV of the Articles of Incorporation of the Corporation, no
action of shareholders of the Corporation is required to effect such amendment.
DATED the 27th day of August, 1997.
MERIT MEDICAL SYSTEMS, INC.
By /s/ Fred Lampropoulos
----------------------
Its President
ATTEST:
By /s/ Kent Stanger
----------------
Its Secretary
13
November 30, 1999
The Board of Directors
of Merit Medical Systems, Inc.
1600 West Merit Parkway
South Jordan, Utah 84095
Re: Merit Medical Systems, Inc.
Registration Statement on Form S-8
Gentlemen:
As counsel to Merit Medical Systems, Inc., a Utah corporation (the
"Company"), in connection with the Company's Registration Statement on Form S-8
(the "Registration Statement") to be filed under the Securities Act of 1933, as
amended, for registration of 1,600,000 shares (the "Shares") of common stock, no
par value, of the Company to be offered, sold and issued by the Company pursuant
to the Merit Medical Systems, Inc. 1999 Omnibus Stock Incentive Plan (the
"Plan"), we have examined the originals or certified, conformed or reproduction
copies of all such records, agreements, instruments and documents as we have
deemed necessary as the basis for the opinion expressed herein. In all such
examinations, we have assumed the genuineness of all signatures on original or
certified copies and the conformity to original or certified copies of all
copies submitted to us as conformed or reproduction copies. As to various
questions of fact relevant to the opinion hereinafter expressed, we have relied
upon certificates of public officials and statements or certificates of officers
or representatives of the Company and others.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued in accordance with the terms and conditions of the Plan and
pursuant to the Registration Statement, will be legally issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PARR WADDOUPS BROWN GEE & LOVELESS
/s/ PARR WADDOUPS BROWN GEE & LOVELESS
--------------------------------------
14
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 March 16, 1999,
appearing in the Annual Report on Form 10-K of Merit Medical Systems, Inc. for
the year ended December 31, 1998
/s/ Deloitte & Touche, LLP
- ---------------------------
Deloitte & Touche, LLP
Salt Lake City, Utah
November 30, 1999
15