S-8: Initial registration statement for securities to be offered to employees pursuant to employee benefit plans
Published on July 12, 1996
As filed with the Securities and Exchange Commission on July 10, 1996
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
RESMED INC.
(Exact name of registrant as specified in its charter)
82 WATERLOO ROAD
NORTH RYDE, NEW SOUTH WALES 2113
AUSTRALIA
61(2) 878-5244
(Address of principal executive offices, Zip Code)
1995 STOCK OPTION PLAN OF
RESMED INC.
(Full title of the plan)
This Document Contains a Total of 13 Pages.
The Exhibit Index is Located on Page 6.
PART I
ITEM 1. PLAN INFORMATION
Not required to be filed with this Registration Statement.
ITEM 2. REGISTRATION INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents are hereby incorporated by reference in this
Registration Statement:
(a) The Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1995;
(b) The Company's Quarterly Reports on Form 10-Q for the
quarters ended September 30, 1995, December 31, 1995 and March 31, 1996;
(c) All other reports filed pursuant to Section 13(a) or 15(d)
of the Exchange Act since the end of the Company's fiscal year ended June 30,
1995; and
(d) The description of the Company's Common Stock contained in
Amendment No. 2 to the Company's Registration Statement on Form S-1 dated May
30, 1995, File No. 33-91094.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 after the date this
Registration Statement is filed with the Securities and Exchange Commission
and 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 of it from the respective dates of
filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Registration Statement.
- -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
Article Seventh of the Company's Certificate of Incorporation provides
that the Company shall indemnify to the fullest extent permitted by Sections
102(b)(7) and 145 of the Delaware General Corporation Law, as amended from
time to time, each person that such Sections grant the Company the power to
indemnify. Article Seventh of the Certificate of Incorporation also provides
that no director shall be liable to the Company or any of its stockholders for
monetary damages for breach of fiduciary duty as a director, except with
respect to (1) a breach of the director's duty of loyalty to the Company or
its stockholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
Section 174 of the Delaware General Corporation Law or (4) a transaction from
which the director derived an improper personal benefit, it being the
intention of the foregoing provision to eliminate the liability of the
Company's directors to the Company or its stockholders to the fullest extent
permitted by Section 102(b)(7) of Delaware General Corporation Law, as amended
from time to time. The Delaware General Corporation Law permits a corporation
to indemnify a director, officer, agent or employee, who was or is a party or
is threatened to be made a party to any proceedings, against certain expenses,
judgments, fines, settlements and other amounts under certain circumstances if
such indemnified party (i) acted in good faith and in a manner reasonably
believed by the indemnified party to be in or not opposed to the best
interests of the corporation, and (ii) with respect to any criminal action or
proceedings, has no reasonable cause to believe his or her conduct was
unlawful. The termination of any proceeding by conviction, or upon a plea of
nolo contender or its equivalent, or an entry of any order of probation prior
to judgement, does not, of itself, create a presumption that the indemnified
party did not meet the requisite standard of conduct required for
indemnification to be permitted. It is the position of the Securities and
Exchange Commission that indemnification of directors and officers for
liabilities arising under the Securities Act of 1933 is against public policy
and is unenforceable pursuant to Section 14 of such Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
See the Exhibit Index attached hereto.
- -3-
ITEM 9. UNDER-TAKINGS
(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 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 the
registration statement; and
(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) shall not apply to
information required to be included in a post-effective amendment by those
paragraphs which are 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 this 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 this
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.
- -4-
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 San Diego, State of California, on
June 21, 1996.
RESMED INC.
By: PETER C FARRELL
Dr. Peter C. Farrell
President
July 10, 1996
POWER OF ATTORNEY
Each person whose signature appears below authorizes Dr. Peter C. Farrell
and Norman DeWitt, and any one of them, with full power of substitution and
resubstitution, his true and lawful attorneys-in-fact, for him in any and all
capacities, to sign any amendments (including post-effective amendments) to
this Registration Statement and to file the same, with exhibits thereto, and
other documents in connection therewith, with the Securities and Exchange
Commission.
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.
- -5-
EXHIBIT INDEX
- -6-
Exhibit 5.1
July 10, 1996
ResMed Inc.
82 Waterloo Road
North Ryde
New South Wales 2113
Australia
Re: ResMed Inc.
Gentlemen:
At your request, we have examined the Registration Statement on Form
S-8 (the "Registration Statement"), which you intend to file with the
Securities and Exchange Commission in connection with the registration under
the Securities Act of 1993, as amended, of 700,000 shares of Common Stock, par
value $0.004 per share (the "Shares"), to be sold by ResMed Inc., a Delaware
corporation (the "Company"), under the 1995 Stock Option Plan of ResMed Inc.
(the "Stock Option Plan"). You have requested our opinion with respect to the
matters set forth below.
In our capacity as your counsel in connection with such
registration, we are familiar with the proceedings taken and proposed to be
taken by the Company in connection with the authorization, issuance and sale
of the Shares, and for the purposes of this opinion, have assumed such
proceedings will be timely completed in the manner presently proposed. In
addition, we have made such legal and factual examinations and inquiries,
including an examination of originals or copies certified or otherwise
identified to our satisfaction of such documents, corporate records and
instruments, as we have deemed necessary or appropriate for purposes of this
opinion.
In our examination, we have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals,
and the conformity to authentic original documents of all documents submitted
to us as copies.
We are opining herein as to the effect on the subject transaction
only of the General Corporation Law of the State of Delaware, and we express
no opinion with respect to the applicability thereto, or the effect thereon,
of the laws of any other jurisdiction or any other laws, or as to any matters
of municipal law or the laws of any other local agencies within the state.
Subject to the foregoing, it is our opinion that as of the date
hereof the Shares have been duly authorized, and, upon the exercise of options
and the payment for Shares in accordance with the terms set forth in the Stock
Option Plan, under which such Shares will be issued and sold, the Shares will
be validly issued, fully paid and nonassessable.
We consent to your filing this opinion as an exhibit to the
Registration Statement.
Very truly yours,
LATHAM & WATKINS
- -7-
Exhibit 10.2
RESMED INC.
(Incorporated under the laws of the State of Delaware)
VOID AFTER 12:00 MIDNIGHT, NEW YORK CITY TIME, ON 10 YEARS FROM DATE OF
GRANT
OPTION TO PURCHASE ___ SHARES
Dated: _______, _______ OF COMMON STOCK
RESMED INC. 1995 STOCK OPTION PLAN
No. ___
RESMED INC., a Delaware corporation (the "Company"), hereby certifies
that ______ (the "Holder") is entitled, subject to the provisions of this
option (the "Option"), to purchase from the Company, at any time, or from time
to time during the period commencing on the day hereof, and expiring at 12:00
Midnight, New York City local time on 10 years from date of grant up to ___
fully paid and non-assessable shares of Common Stock, $.004 par value, of the
Company at a price of $____ per share (such exercise price per share being
hereinafter referred to as the "Exercise Price" and, if and as adjusted
as herein provided, the "Pro Forma Adjusted Exercise Price").
The option represented by this Option Certificate has been granted
pursuant to the Company's 1995 Stock Option Plan (the "Plan").
The term "Common Stock" means the common stock, $.004 par value, of the
Company as constituted on the date hereof (the "Base Date"), together with any
other equity securities that may be issued by the Company in addition thereto
or in substitution therefor. The number of shares of Common Stock to be
received upon the exercise of this Option may be adjusted from time to time as
hereinafter set forth. The shares of Common Stock deliverable upon such
exercise. and if and as adjusted from time to time, are hereinafter sometimes
referred to as "Option Stock."
Upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Option Certificate, and (in
the case of loss, theft or destruction) of reasonably satisfactory
indemnification, and upon surrender and cancellation of this Option
Certificate, if mutilated, the Company shall execute and deliver a new Option
Certificate of like tenor and date. Any such new Option Certificate executed
and delivered shall constitute an additional contractual obligation on the
part of the Company, whether or not this Option Certificate so lost, stolen,
destroyed or mutilated shall be at any time enforceable by anyone.
The Holder agrees with the Company that this Option is issued, and all
the rights hereunder shall be held, subject to all of the conditions,
limitations and provisions set forth herein.
1. EXERCISE OF OPTION. Subject to the vesting schedule set forth
in Section 2 below, this Option may be exercised in whole or in part at any
time, or from time to time, during the period commencing on the day hereof and
expiring 12:00 Midnight, New York City local time on 10 years from
date of grant by presentation and surrender hereof to the Company at its
principal office or at its San Diego, California office, with the Option
Exercise Form attached hereto duly executed and accompanied by payment
(either in cash or by certified or official bank check, payable to the order
of the Company) of the Exercise Price for the number of shares specified in
such Form, duly
- -8-
executed by the Holder or his or her duly authorized attorney. If this Option
should be exercised in part only, the Company shall. upon surrender of this
Option Certificate for cancellation, execute and deliver a new Option
Certificate evidencing the rights of the Holder thereof to purchase the
balance of the shares purchasable hereunder. Upon receipt by the Company of
this Option Certificate, together with the Exercise Price, at its office in
proper form for exercise, the Holder shall be deemed to be the holder of
record of the shares of Common Stock issuable upon such exercise,
notwithstanding that the stock transfer books of the Company shall then be
closed or that certificates representing such shares of Common Stock shall not
then be actually delivered to the Holder ' The Company shall pay any and all
documentary stamp or similar issue taxes payable in respect of the issue or
delivery of shares of Common Stock on exercise of this Option.
2. VESTING SCHEDULE. No portion of this Option may be exercised
until the date on which such portion shall have vested. Except as set forth
below, and subject to the determination of the Company in its sole discretion
to accelerate the vesting schedule hereunder due to other circumstances, this
Option shall be vested and exercisable with respect to the following
percentage of the total number of shares of Option Stock on the following
dates:
Once vested, this Option shall continue to be exercisable at any time or times
prior to the Expiration Date, subject to the provisions hereof and of the
Plan.
3. Reservation of Shares. The Company will at all times reserve
for issuance and delivery upon exercise of this Option all shares of Common
Stock or other shares of capital stock of the Company (and other securities
and property) from time to time receivable upon exercise of this Option. All
such shares (and other securities and property) shall be duly authorized and,
when issued upon such exercise, shall be validly issued, fully paid and
nonassessable and free of all preemptive rights.
4. Termination of Employment or Death.
(a) If the employment of the Holder, if an employee of the Company or
a subsidiary
corporation of the Company, or the services of the Holder, if either a
non-employee Director of or a non-employee consultant of the Company or a
subsidiary corporation of the Company, shall be terminated voluntarily by the
employee, the non-employee Director or the non-employee consultant or for
cause, then his Option shall expire forthwith. Except as provided in
subsections (b) and (c) of this Section 4, if such employment or services
shall terminate for any other reason, then such Option may be exercised at any
time within three months after such termination, subject to the provisions of
subparagraph (d) of this Section 4. For purposes hereof, the retirement of an
individual either pursuant to a pension or retirement plan adopted by the
Company or at the normal retirement date prescribed from time to time by the
Company shall be deemed to be termination of such individual's employment
other than voluntarily or for cause. For purposes of this subparagraph, an
employee who leaves the employ of the Company to become an employee of (i) a
subsidiary corporation of the Company or (ii) a corporation (or its parent or
subsidiary) that has assumed the Option of the Company as a result of a
corporate reorganization, etc., shall not be considered to have terminated his
employment.
- -9-
(b) If the Holder dies (i) while employed by, or while serving as
either a non-employee Director of or a non-employee consultant to the Company
or a subsidiary corporation of the Company, or (ii) within three months after
the termination of his employment or his services other than voluntarily or
for cause, then this Option may, subject to the provisions of subparagraph (d)
of this Section 4, be exercised any time within one year after such death
by the estate of the Holder or by a person who acquired the right to exercise
such Option by bequest or inheritance or by reason of the death of the Holder.
(c) If the Holder ceases employment because of permanent and total
disability (within the meaning of Section 22(e)(3) of the Code) while employed
by, or while serving as a non-employee Director of or a non-employee
consultant to the Company or a subsidiary corporation of the Company, then
this Option may, subject to the provisions of subparagraph (d) of this Section
4, be exercised at any time within one year after his termination of
employment or termination of services due to the disability.
(d) This Option may not be exercised pursuant to this Section 4
except to the extent that the Holder was entitled to exercise this Option at
the time of termination of employment, termination of services, or death, and
in any event may not be exercised after the expiration of this Option.
_ e) For purposes of this Section 4, the employment
relationship of an employee of the Company or of a subsidiary corporation of
the Company will be treated as continuing intact while he is on military or
sick leave or other bona fide leave of absence (such as temporary employment
by the government) if such leave does not exceed ninety days, or, if longer,
so long as his right to reemployment is guaranteed either by statute or by
contract.
1. INCORPORATION OF PLAN. Notwithstanding anything herein to the
contrary, this Option shall be subject to and governed by all the terms and
conditions of the Plan.
2. TRANSFERABILITY. This Agreement is personal to Holder, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or by the laws of descent and distribution, and
is exercisable, during Holder's lifetime, only by Holder.
3. ADJUSTMENT UPON CHANGES IN CAPITALIZATION.
(a) If the Common Stock as a whole is changed into or exchanged for a
different number or kind of interests or securities of the Company,
whether through reorganization, recapitalization, reclassification, stock
dividend or other distribution, split, combination of interests, exchange of
interests, change in corporate structure or the like, an appropriate and
proportionate adjustment shall be made in the number and kind of Option Stock
subject to this Option. In addition, upon such change, the exercise price of
shares of Option Stock or other securities subject to any unexercised portions
of this Option shall be adjusted proportionately so that Holder thereafter
shall have the right to purchase the number and kind of Option Stock (as so
adjusted) under this Option at an Exercise Price (as so adjusted) which Holder
could purchase for the total purchase price applicable to the unexercised
portion of this Option immediately prior to such adjustment, provided that any
fractional shares resulting from such calculation shall be eliminated.
(b) Adjustments under this Paragraph 7 shall be made by the Option
Committee of the Company, whose determination shall be conclusive.
- -10-
4. EFFECT OF CERTAIN TRANSACTIONS. If the Company is merged into
another entity, or if one or more entities is merged into the Company or there
is a consolidation of the Company and one or more entities and, in any
such case, the shares of Common Stock are converted into cash, securities or
other property other than shares of Common Stock, or if the Company is
liquidated, or sells or otherwise disposes of substantially all its assets to
another entity while unexercised Options remain outstanding under the Plan,
then: (i) subject to the provisions of clause (iii) below, this Option will
terminate as of the effective date of any such merger, consolidation,
liquidation or sale, provided that (x) notice of such termination shall be
given to Holder and (y) Holder shall have the right to exercise this Option to
the extent that it is then exercisable during the 15-day period preceding the
effective date of such merger, consolidation, liquidation or sale, contingent
upon the consummation of such merger, consolidation, liquidation or sale,
provided, however, that in no event shalt this Option be exercisable after the
Expiration Date; (ii) the Option Committee, with the approval of the Board of
Directors of the Company, may in its discretion accelerate the time for
exercise of any unexercised and unexpired portion of this Option, including
the then unvested portion of this Option, to and after a date prior to the
effective date of such merger, consolidation, liquidation or sale specified by
the Option Committee; and (iii) the Option Committee, with the approval of the
Board of Directors of the Company, may provide that after the effective date
of such merger, consolidation or sale this Option shall survive and Holder
shall be entitled, upon exercise of this Option, to receive, in lieu of shares
of Common Stock, shares of stock or other securities as the holders of shares
of Common Stock received pursuant to the terms of the merger, consolidation or
sale.
5. TAX WITHHOLDING. Holder shall, not later than the date as of
which the exercise of this Option becomes a taxable event for Federal income
tax purposes, pay to the Company or make arrangements satisfactory to the
Option Committee for payment of any Federal, state, and local taxes required
by law to be withheld on account of such taxable event. The Holder may elect
to have such tax withholding obligation satisfied, in whole or in part by (i)
authorizing the Company to withhold from shares of Common Stock to be issued,
or (ii) transferring to the Company, a number of shares of Common Stock with
an aggregate fair market value that would satisfy the withholding amount due.
6. FRACTIONAL SHARES. No fractional shares or scrip representing
fractional shares of Common Stock shall be issued upon the exercise of this
Option, but the Company shall issue one additional share of its Common Stock
in lieu of each fraction of a share otherwise called for upon any exercise of
this Option.
7. APPLICABLE LAW. This Option is issued under and shall for all
purposes be governed by and construed in accordance with the laws of the State
of Delaware.
8. NOTICE. Notices and other communications to be given to the
Holder of this Option evidenced by this certificate shall be deemed to have
been sufficiently given, if delivered or mailed, addressed in the name and at
the address of such owner appearing on the records of the Company, and if
mailed, sent registered or certified mail, postage prepaid. Notices or other
communications to the Company shall be deemed to have been sufficiently given
if delivered by hand or mailed, by registered or certified mail, postage
prepaid, or sent by overnight or second day courier, to the Company at 82
Waterloo Road, North Ryde, New South Wales 2113, Australia, Attn: Secretary,
or at such other address as the Company shall have designated by written
notice to such registered owner as herein provided. Notice shall be deemed
given three days after mailing or upon receipt if sent by courier as herein
provided.
- -11-
IN WITNESS WHEREOF, the Company has caused this Option to be signed on
its behalf, in its corporate name, by its duly authorized officer, all as of
the day and year first above written.
RESMED INC.
By: PETER C FARRELL
President
OPTION EXERCISE FORM
The undersigned hereby irrevocably elects to exercise this Option to the
extent of purchasing _____________ shares of Common Stock of ResMed Inc. and
hereby makes payment at the rate of $_______ per share, or an aggregate of
$_____________, in payment therefor.
________________________________
Name of Registered Holder
________________________________
Signature
________________________________
Date
- -12-
Exhibit 23.1
INDEPENDENT AUDITORS CONSENT
We consent to the use of our reports incorporated herein by reference and
to the reference to our firm under the heading "Experts" in the prospectus.
Our report dated August 4, 1995, contains an explanatory paragraph that states
that the Company is a defendant in a lawsuit alleging unfair trade practices.
The litigation is in its early stages and, consequently, the ultimate outcome
of the litigation cannot presently be determined. Accordingly, no provision
for any liability that may arise upon adjudication has been recognised in the
Company's consolidated financial statements.
KPMG PEAT MARWICK LLP
KPMG Peat Marwick LLP
San Diego, California
July 9, 1996
- -13-