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.
1996 EMPLOYEE STOCK PURCHASE PLAN (the "Merit Plan")
and
MERIT SERVICES NON-QUALIFIED
EMPLOYEE STOCK PURCHASE PLAN (the "Merit Services Plan")
(together, the "Plans")
(Full title of the plans)
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 Maximum
Amount to be Maximum Offering Aggregate Offering Amount of
Title of Securities to be Registered Registered Price per Share(1) Price(1) Registration
Fee(1)
- --------------------------------------- ----------------- ------------------- ---------------------- -------------------
Common Stock, no par value:
Merit Plan ............. 180,000 Shares(2)
Merit Services Plan 70,000 Shares $6.21875 $1,473,352 $368
Total: . ......................
=======================================================================================================================
(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 March 29, 2001.
(2) 13,079 of these shares have previously been registered under Form S-8, SEC
File No. 333-92053, and are consequently excluded from the calculation of the
registration fee pursuant to General Instruction E of Form S-8.
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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) The 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, no par
value, 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.
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,
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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
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.
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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 8.
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 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of 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.
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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,
By: /s/ Fred P. Lampropoulos President and Chief Executive March 23, 2001
- ----------------------------- Officer
Fred P. Lampropoulos
By: /s/ Kent W. Stanger Secretary-Treasurer, Chief March 23, 2001
- ------------------------------ Financial Officer and Director
Kent W. Stanger
By: /s/ Michael E. Stillabower Director March 26, 2001
- ------------------------------
Michael E. Stillabower
By: /s/ James J. Ellis Director March 27, 2001
- ------------------------------
James J. Ellis
By: /s/ Rex C. Bean Director March 27, 2001
- ------------------------------
Rex C. Bean
By: /s/ Richard W. Edelman Director March 26, 2001
- ------------------------------
Richard W. Edelman
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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 to
Exhibit 3.2 of the Company's Registration Statement on
Form S-18 filed 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 onsent of Parr Waddoups Brown Gee & Loveless, a
professional corporation (included in Exhibit No. 5).
24 Powers of Attorney (included on signature page hereto).
99.1 Merit Medical Systems, Inc. 1996 Employee Stock Purchase
Plan, as amended.
- -----------------------
* Incorporated by reference.
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