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As filed with the Securities and Exchange Commission on September 25, 2000
Registration No. ________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
VITALCOM INC.
(Exact name of registrant as specified in its charter)
Delaware 33-0538926
(State of incorporation) (I.R.S. Employer Identification No.)
15222 Del Amo Avenue
Tustin, California 92780
(Address and zip code of principal executive offices)
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1996 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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Frank T. Sample
VitalCom Inc.
15222 Del Amo Avenue
Tustin, California 92780
(Name and address of agent for service)
(714) 546-0147
(Telephone number, including area code, of agent for service)
Copy to:
Douglas F. Higham, Esq.
Higham, McConnell & Dunning LLP
28202 Cabot Road, Suite 450
Laguna Niguel, California 92677-1250
CALCULATION OF REGISTRATION FEE
====================================================================================================================
Title of Proposed Proposed
Securities Amount Maximum Maximum Amount of
to be to be Offering Price Aggregate Registration
Registered Registered(1) Per Share(2) Offering Price(2) Fee
- --------------------------------------------------------------------------------------------------------------------
Common Stock, $0.0001 par value, 150,000 shares $2.071875 $310,781.25 $82.05
to be issued under 1996 Employee
Stock Purchase Plan
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(1) An additional 150,000 shares reserved for issuance under the 1996 Employee
Stock Purchase Plan were registered under the Registration Statement on
Form S-8, file number 333-67109, filed with the Securities and Exchange
Commission on November 12, 1998, and an additional 150,000 shares reserved
for issuance under the 1996 Employee Stock Purchase Plan were registered
under the Registration Statement on Form S-8/S-3, file number 333-0372,
filed with the Securities and Exchange Commission on May 14, 1996.
(2) The exercise price of $2.071875 per share, computed in accordance with Rule
457(c) under the Securities Act of 1933, is 85% of the average high and low
prices of a share of VitalCom Inc. Common Stock as reported in the Nasdaq
Small Cap Market on September 18, 2000. Pursuant to Section 2(m) of the
1996 Employee Stock Purchase Plan (Exhibit 4.1), shares are sold at 85% of
the lesser of the fair market value of such shares on the Enrollment Date
or on the Exercise Date (as defined in the 1996 Employee Stock Purchase
Plan).
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. Incorporation of Documents by Reference
The following documents are incorporated into this Registration
Statement by reference:
(a) The Registrant's report on Form 10-K for its fiscal year ended
December 31, 1999.
(b) The Registrant's report on Form 10-Q for its fiscal quarter
ended March 31, 2000.
(c) The Registrant's report on Form 10-Q for its fiscal quarter
ended June 30, 2000.
(d) The description of the Registrant's common stock set forth in
its Registration Statement on Form 8-A, filed January 16, 1996
pursuant to Section 12(g) of the Securities Exchange Act of
1934 (the "Exchange Act"), including any amendments or reports
filed for the purpose of updating such description.
In addition, all reports and other 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 which are the subject of this Registration Statement have been sold
or which deregisters all such securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and shall be
deemed to be a part hereof from the date of the filing of each such report or
document, except as to any portion of any future Annual or Quarterly Report to
Shareholders which is not deemed filed under such provisions.
ITEM 4. Description of Securities
Not applicable.
ITEM 5. Interests of Named Experts and Counsel
Not applicable.
ITEM 6. Indemnification of Directors and Officers
The Company's Certificate of Incorporation limits the monetary liability
of its directors to the Company or its stockholders for breach of such
director's fiduciary duty to the fullest extent permitted by the Delaware
General Corporation Law (the "DGCL") or, if the DGCL is not applicable, to the
fullest extent permissible under applicable law. In addition, the Company's
charter authorizes the Company by bylaw, agreement or otherwise to indemnify
directors, officers, employees and agents in excess of the indemnification
permitted by applicable law.
Under the Company's Bylaws, each person who was or is a party or is
threatened to be made a party to, or is involved in, any proceeding by reason of
the fact that he or she is or was a director or officer of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation or other enterprise, shall be indemnified and held
harmless by the Company to the fullest extent permitted by the DGCL against all
costs, charges, expenses, liabilities and losses (including attorney's fees)
reasonably incurred or suffered by such person in connection with such
proceeding. Such right to indemnification includes the right to be paid by the
Company the expenses incurred in defending any such proceeding in advance of its
final disposition. The Board of
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Directors has discretion to provide indemnification to employees and agents of
the Company with the same scope and effect as the foregoing indemnification of
directors and officers. The foregoing right to indemnification and advancement
of expenses under the Company's by-laws is not exclusive of any other right
which any person may have or acquire under the Company's charter, any statute,
agreement or otherwise.
In addition, the Company has entered into indemnification agreements
with each of its directors and executive officers and has obtained a directors'
and officers' liability insurance policy that insures such persons against the
cost of defense, settlement or payment of judgments under certain circumstances.
ITEM 7. Exemption From Registration Claimed
Not applicable.
ITEM 8. Exhibits Description
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4.1 1996 Employee Stock Option Plan and form of agreement
thereunder.
5.1 Opinion of Higham, McConnell & Dunning LLP.
23.1 Consent of Higham, McConnell & Dunning LLP (included in
the opinion of counsel filed as Exhibit 5.1 hereto).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (Contained on Signature page).
ITEM 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(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 the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth
in the Registration Statement;
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if 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.
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(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bonafide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for the purpose
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 bonafide offering thereof.
(h) 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Tustin, State of California, on the 21st day of
September, 2000
VITALCOM INC.
By: /s/ Frank T. Sample
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Frank T. Sample, President
and Chief Executive Officer
POWER OF ATTORNEY
We, the undersigned directors and officers of VitalCom Inc., do hereby
constitute and appoint Frank T. Sample and Scott E. Lamb, or either of them, our
true and lawful attorneys and agents, to do any and all acts and things in our
name and behalf in our capacities as directors and officers and to execute any
and all instruments for us and in our names in the capacities indicated below,
which said attorneys and agents, or either of them, may deem necessary or
advisable to enable said corporation to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities and
Exchange Commission, in connection with this Registration Statement, including
specifically, but without limitation, power and authority to sign for us or any
of us in our names and in the capacities indicated below, any and all amendments
(including post-effective amendments) hereto; and we do hereby ratify and
confirm all that said attorneys and agents, or either of them, shall do or cause
to be done by virtue hereof.
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.
Signature Title Date
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/s/ Frank T. Sample President, Chief Executive September 21, 2000
- ------------------------------- Officer (Principal Executive
Frank T. Sample Officer) and Director
/s/ Scott E. Lamb Senior Director Finance and September 21, 2000
- ------------------------------- Controller (Principal Financial
Scott E. Lamb and Accounting Officer)
/s/ Elizabeth H. Weatherman Director September 21, 2000
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Elizabeth H. Weatherman
/s/ Jack W. Lasersohn Director September 21, 2000
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Jack W. Lasersohn
/s/ Timothy T. Weglicki Director September 21, 2000
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Timothy T. Weglicki
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INDEX TO EXHIBITS
Exhibit No. Description
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4.1 1996 Employee Stock Option Plan and form of agreement thereunder.
5.1 Opinion of Higham, McConnell & Dunning LLP.
23.1 Consent of Higham, McConnell & Dunning LLP (included in the
opinion of counsel filed as Exhibit 5.1 hereto).
23.2 Independent Auditors' Consent.
24.1 Power of Attorney (see Part II).