As filed with the Securities and Exchange Commission on August 20, 1996
Registration No. 333-
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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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.)
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1600 West Merit Parkway
South Jordan, Utah 84095
(Address of Principal Executive Offices,
including Zip Code)
MERIT MEDICAL SYSTEMS, INC.
1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
KENT W. STANGER Copy to:
Chief Financial Officer RICHARD G. BROWN
Merit Medical Systems, Inc. Kimball, Parr, Waddoups, Brown & Gee
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)
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered per Share(1) Offering Price(1) Registration Fee(1)
Common Stock, no par value 250,000 shares $7.69 $1,922,500 $663
(1) Pursuant to Rules 457(h)(1) and 457(c), the offering price per share,
aggregate offering price and registration fee are computed on the basis of
the average of the high and low sales prices as reported on the NASDAQ
Stock Market (National Market System) on August 16, 1996.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual 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 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, 1995.
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996.
(3) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1996.
(4) The description of the Registrant's Common Stock, no par value,
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.
The financial statements incorporated by reference in this Registration
Statement from the Registrant's Annual Report on Form 10-K for the year ended
December 31, 1995 have been audited by Deloitte & Touche LLP, independent
auditors, as stated in their report, which is incorporated herein by reference,
and have been so incorporated in reliance upon the report of such firm given
upon their authority as experts in accounting and auditing.
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 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 a
director in connection with a Proceeding by or in the right of the corporation
in which the director was adjudged liable to the corporation, or in connection
with any other Proceeding charging that the 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-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 with respect to which he has been
successful.
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.
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.
Unless a corporation's articles of incorporation provide otherwise, (i) an
officer of the corporation is entitled to mandatory indemnification and is
entitled to apply for court ordered indemnification, 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 Articles of Incorporation and Bylaws provide for
indemnification of its officers and directors to fullest extent permitted under
Utah law with respect to any claims, costs, losses, judgments and amounts paid
in settlement resulting from actions against such officers and directors in
their capacities as such.
The Registrant's Articles of Incorporation provide that the liability of
directors of the Registrant for monetary damages for any action taken or any
failure to take any action, as a director, is eliminated to the fullest extent
permitted by Utah law. Utah law 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 stockholders; (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.
The Company maintains insurance from commercial carriers against certain
liabilities which may be incurred by its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index on page 7.
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 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 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.
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 July 31, 1996.
MERIT MEDICAL SYSTEMS, INC.
By /s/ Kent W. Stanger
Kent W. Stanger
Chief Financial 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 President, Chief Executive Officer July 31, 1996
Fred P. Lampropoulos and Director (principal executive
officer)
/s/ Kent W. Stanger Chief Financial Officer, Secretary, July 31, 1996
Kent W. Stanger Treasurer and Director (principal
financial and accounting officer)
/s/ Richard W. Edelman Director July 31, 1996
Richard W. Edelman
/s/ Rex C. Bean Director July 31, 1996
Rex C. Bean
/s/ James J. Ellis Director July 31, 1996
James J. Ellis
/s/ Michael E. Stillabower, M.D. Director July 31, 1996
Michael E. Stillabower, M.D.
MERIT MEDICAL SYSTEMS, INC.
EXHIBIT INDEX
Regulation S-K Sequential
Exhibit No. Description Page No.
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4.1* Articles of Incorporation of the Registrant,
as amended (Incorporated by Reference to
Exhibit 3 of the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1996).
4.2* Bylaws of the Registrant (Incorporated by
Reference to Exhibit 3.2 of the Company's
Registration Statement on Form S-18 filed
October 19, 1989).
5 Opinion of Kimball, Parr, Waddoups, Brown & Gee,
a professional corporation, as to the legality
of the securities offered.
23.1 Consent of Deloitte & Touche LLP, independent
auditors.
23.2 Consent of Kimball, Parr, Waddoups, Brown & Gee
(included in Exhibit No. 5).
24 Powers of Attorney (included on page 6 hereof).
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* Incorporated by reference
Exhibit 5
August 14, 1996
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 250,000 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. 1996 Employee Stock Purchase Plan (the
"Purchase 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
Purchase 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,
KIMBALL, PARR, WADDOUPS, BROWN & GEE
Exhibt 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 14, 1996,
incorporated by reference in the Annual Report on Form 10-K of Merit Medical
Systems, Inc. for the year ended December 31, 1995 and to the reference to us
under Item 3.(3) in the Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Salt Lake City, Utah
August 12, 1996
