-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Le0e5tocjF3o5YdFo9khs3fBLzDYHuDzkRb/QVZmD1ouJ3QZ3AlQ5ZM+49eXJk2E ZOyutqHjkfXuPz9whC6hvg== 0000831967-97-000008.txt : 19970401 0000831967-97-000008.hdr.sgml : 19970401 ACCESSION NUMBER: 0000831967-97-000008 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19970328 EFFECTIVENESS DATE: 19970328 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: KINETIC CONCEPTS INC /TX/ CENTRAL INDEX KEY: 0000831967 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS FURNITURE & FIXTURES [2590] IRS NUMBER: 741891727 STATE OF INCORPORATION: TX FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-24195 FILM NUMBER: 97568162 BUSINESS ADDRESS: STREET 1: 8023 VANTAGE DR CITY: SAN ANTONIO STATE: TX ZIP: 78230 BUSINESS PHONE: 2103083993 MAIL ADDRESS: STREET 1: P. 0. B0X 659508 CITY: SAN ANTONIO STATE: TX ZIP: 78230 S-8 1 Registration No. 33- SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 KINETIC CONCEPTS, INC. (Exact name of issuer as specified in its charter) TEXAS 74-2048057 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 8023 Vantage Drive, San Antonio, Texas 78230 (Address of principal executive offices) (Zip Code) Senior Executive Stock Option Plan (Full title of the plan) With a copy to: Raymond R. Hannigan Dennis E. Noll, Esq. President and Chief Executive Senior Vice President and Officer General Counsel KINETIC CONCEPTS, INC. KINETIC CONCEPTS, INC. 8023 Vantage Drive 8023 Vantage Drive San Antonio, Texas 78230 San Antonio, Texas 78230 (210) 524-9000 (210) 524-9000 (Name, address and telephone number, including area code, of agent for service) 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 Fee - ---------------------------------------------------------------------------- Common Stock, 1,400,000 $14.50 $20,300,000 $6,151.52 par value shares $.001 per share (1) These 1,400,000 shares of common stock are registered hereby to be issued in connection with the Plan, plus such indeterminate number of additional shares of common stock as may be issuable by reason of the operation of the anti-dilution provisions of the options. (2) In accordance with Rule 457(h), the Proposed Maximum Offering Price Per Share is $14.50, which is the closing sale price reported on the Nasdaq National Market on March 21, 1997, which is the price used solely for the purpose of calculating the registration fee. PART II Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") by Kinetic Concepts, Inc., a Texas corporation (the "Company" or "Registrant"), are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1996 filed with the Commission on March 28, 1997. (b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996 filed with the Commission on May 13, 1996. (c) The Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1996 filed with the Commission on August 13, 1996. (d) The Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1996 filed with the Commission on November 14, 1996. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), subsequent to the date this Registration Statement is filed with the 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 the Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference 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 subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such prior statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement, except as indicated herein. (c) See "Description of Capital Stock" and the sub-caption "Common Stock" on page 48 of the Company's Form S-3 Registration Statement No. 33-63957 filed with the Commission on January 24, 1996, and incorporated herein by reference. Item 4. Description of Securities. Not applicable. Item 5. Interests of Named Experts and Counsel. The validity of the Common Stock being registered hereby has been passed upon for the Company by Dennis E. Noll, Esq., Senior Vice President, General Counsel and Secretary of the Company. Mr. Noll owns 11,500 shares of the common stock, par value $.001 per share ("Common Stock"), of the Company and has been granted options to purchase 90,000 shares of Common Stock under the Plan and holds other options to acquire an additional 75,700 shares of the Common Stock under the Company's other stock option plans. Item 6. Indemnification of Directors and Officers. Article 2.02-1 of the Texas Business Corporation Act (the "Act") empowers a Texas corporation to indemnify any person who was, is, or is threatened to be made, a named defendant or respondent to any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, any appeal in such action, suit or proceeding, and any inquiry or investigation that could lead to such an action, suit or proceeding, because the person is or was a director of such corporation, and any person who, while serving as a director of such corporation, was serving at the request of such corporation as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of another corporation or enterprise. This indemnity may include judgments, penalties (including excise and similar taxes), fines, settlements and reasonable expenses actually incurred by such person in connection with such action, suit or proceeding, provided that he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. Indemnification of a director is not permitted if the person is found liable for willful and intentional misconduct in the performance of his duty to the corporation, is found to be liable on the basis of the receipt of an improper benefit or is found liable to the corporation. A Texas corporation is also permitted to indemnify and advance expenses to officers, employees and agents who are not directors to such extent as may be provided by its articles of incorporation, bylaws, action of board of directors, a contract or required by common law. No indemnification shall be permitted if the person shall have been found liable for willful or intentional misconduct in the performance of his duty to the corporation. A Texas corporation is required to indemnify a director or officer against reasonable expenses incurred by him in connection with a proceeding in which he is named as a defendant or respondent because he is or was a director or officer if he has been wholly successful, on the merits or otherwise, in defense of the proceeding. Article VIII of the Bylaws of the Company provides for indemnification of the directors and officers of the Company to the fullest extent permitted by law, as now in effect or later amended. Article VIII, Section I of the Bylaws provides that expenses incurred by a director or officer in defending a suit or other similar proceeding will be paid by the Company upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it is ultimately determined that such director or officer is not entitled to be indemnified by the Company. The Company also has provided liability insurance for each director and officer for certain losses arising from claims or charges made against them while acting in their capacities as directors or officers of the Company. Additionally, Article Seven of the Company's Restated Articles of Incorporation limits the liability of the Company's directors under certain circumstances. Article Seven states: A Director of the Corporation shall not be personally liable to the Corporation or its shareholders for monetary damages for an act or omission in the Director's capacity as a director, except for liability for (a) a breach of the Director's duty of loyalty to the Corporation or its shareholders, (b) an act or omission not in good faith or that involves intentional misconduct or a knowing violation of the law, (c) a transaction from which the Director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the Director's office, (d) an act or omission for which the liability of the Director is expressly provided for by statute, or (e) an act related to an unlawful stock repurchase or payment of a dividend. If the Act hereafter is amended to authorize further elimination of the liability of directors, then the liability of a director of the Corporation, in addition to the limitation on the personal liability provided herein, shall be limited to the fullest extent permitted by the Act as amended. Any repeal or modification of this Article Seven by the shareholders of the Corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a Director at the time of such repeal or modification. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (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 Securities Act and is, therefore, unenforceable. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. 4.1 Restated Articles of Incorporation of the Registrant (filed as Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (Registration No. 33-21353), as amended, and incorporated herein by reference) 4.2 Restated By-laws of the Registrant (filed as Exhibit 3.3 to the Registrant's Registration Statement on Form S-1 (Registration No. 33-21353), as amended, and incorporated herein by reference) 5.1 Opinion of Dennis E. Noll, Esq. as to the legality of the Common Stock being registered is attached hereto as Exhibit 5.1. 23.1 Consent of KPMG Peat Marwick is attached hereto as Exhibit 23.1. 23.2 Consent of Dennis E. Noll, Esq. is included in Exhibit 5.1 filed herewith. 24.1 Powers of Attorney (included on pages 6-7 of this Registration Statement). Item 9. Undertakings. (a) The Registrant undertakes the following: (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 (the "Securities Act"); (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) will not apply if this Registration Statement is on Form S-3 or 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 (the "Exchange Act") that are incorporated by reference 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 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 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 the 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 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 San Antonio, Texas on February 28, 1997. KINETIC CONCEPTS, INC. By: // RAYMOND R. HANNIGAN// ----------------------------- Raymond R. Hannigan President and Chief Executive Officer POWER OF ATTORNEY KNOW ALL MEN BY THESE PRESENTS: That each person whose signature appears hereinbelow constitutes and appoints RAYMOND R. HANNIGAN, BIANCA A. RHODES and DENNIS E. NOLL, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys- in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes may lawfully 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 below by the following persons in the capacities and on the date indicated. Signature Name and Title Date //James R. Leininger, M.D.// Chairman of the Board February 28, 1997 - ---------------------------- James R. Leininger, M.D. //Raymond R. Hannigan// Director, President and February 28, 1997 - ---------------------------- Chief Executive Officer Raymond R. Hannigan (Principal Executive Officer) //Bianca A. Rhodes// Senior Vice President, February 28, 1997 - ---------------------------- Finance and Chief Bianca A. Rhodes Financial Officer Principal Financial Officer and Accounting Officer) //Peter A. Leininger, M.D.// Director February 28, 1997 - ----------------------------- Peter A. Leininger, M.D. //Sam A. Brooks// Director February 28, 1997 - ----------------------------- Sam A. Brooks //Frank A. Ehmann// Director February 28, 1997 - ----------------------------- Frank A. Ehmann //Bernhard T. Mittemeyer, M.D.// Director February 28, 1997 - ------------------------------- Bernhard T. Mittemeyer, M.D. //Wendy L. Gramm, Ph.D.// Director February 28, 1997 - ------------------------------ Wendy Lee Gramm, PhD. EXHIBIT INDEX Exhibit No. Description Page 4.1 Restated Articles of Incorporation of * the Registrant (filed as Exhibit 3.2 to the Registrant's Registration Statement on Form S-1 (Registration No. 33- 21353), as amended, and incorporated herein by reference) 4.2 Restated By-laws of the Registrant * (filed as Exhibit 3.3 to the Registrant's Registration Statement on Form S-1 (Registration No. 33-21353), as amended, and incorporated herein by reference) 5.1 Opinion of Dennis E. Noll, Esq. as to 9-10 the legality of the Common Stock being registered is attached hereto as Exhibit 5.1. 23.1 Consent of KPMG Peat Marwick is 11 attached hereto as Exhibit 23.1. 23.2 Consent of Dennis E. Noll, Esq. is 9-10 included in Exhibit 5.1 filed herewith. 24.1 Powers of Attorney 6-7 * Not applicable EX-5 2 EXHIBIT 5.1 (210) 524-9000 March 24, 1997 Kinetic Concepts, Inc. 8023 Vantage Drive San Antonio, Texas 78230 Re: Registration Statement on Form S-8 for the Kinetic Concepts, Inc. Senior Executive Stock Option Plan Gentlemen: I have acted as counsel to Kinetic Concepts, Inc. (the "Company") in connection with the preparation for filing with the Securities and Exchange Commission of a Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended. The Registration Statement relates to an aggregate of 1,400,000 shares (the "Shares") of common stock, par value $.001 per share, of the Company ("Common Stock"). The Shares are issuable pursuant to the 1995 Kinetic Concepts, Inc. Senior Executive Stock Option Plan (the "Plan"). I have examined such corporate records, documents, instruments and certificates of the Company as I have deemed necessary, relevant or appropriate to enable me to render the opinion expressed herein. In such examination, I have assumed the genuineness of all signatures and the authenticity of all documents, instruments, records and certificates submitted to us as copies or originals. Based upon the foregoing, I am of the opinion that the Shares will have been duly authorized and legally issued and will constitute fully paid and nonassessable shares of Common Stock of the Company when issued in accordance with the Plan. I hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, I do not admit that I come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, the rules or regulations of the Securities and Exchange Commission promulgated thereunder or any similar provisions of any state securities laws or regulations. Very truly yours, /s/ Dennis E. Noll ----------------------- Dennis E. Noll, Esq. EX-23 3 Independent Auditors' Consent The Board of Directors Kinetic Concepts, Inc.: We consent to the incorporation by reference in this Registration Statement on Form S-8, pertaining to the Kinetic Concepts, Inc. Senior Executive Stock Option Plan of our audit reports dated February 5, 1997 on the consolidated financial statements of Kinetic Concepts, Inc. and subsidiaries as of December 31, 1996 and 1995, and for each of the years in the three-year period then ended incorporated herein by reference from the Company's annual report on Form 10-K for the year ended December 31, 1995. Our reports refer to a change in the method of applying overhead to inventory in 1994. /s/ KPMG PEAT MARWICK, LLP ------------------------- KPMG Peat Marwick, LLP San Antonio, Texas March 28, 1997 -----END PRIVACY-ENHANCED MESSAGE-----