Reg.No. 333-_____
As filed with the Securities and Exchange Commission on May 20, 2002
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under the Securities Act of 1933
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CRITICARE SYSTEMS, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 39-1501563
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(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
20925 Crossroads Circle, Waukesha, WI 53186 (262) 798-8282
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(Address, including Zip Code of Registrant's (Telephone Number,
Principal Executive Offices) Including Area Code)
Emil H. Soika
President and Chief Executive Officer
Criticare Systems, Inc.
20925 Crossroads Circle
Waukesha, WI 53186
(262) 798-8282
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent for Service)
Copies of all communications to:
Reinhart Boerner Van Deuren s.c.
1000 North Water Street, Suite 2100
Milwaukee, WI 53202
Attn: Benjamin G. Lombard, Esq.
Telephone: (414) 298-1000
Facsimile: (414) 298-8097
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or reinvestment plans, please check the following box.
[ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate Amount of
Title of Shares to be Price Offering Registration
to be Registered Registered Per Share (1) Price (1) Fee
Common Stock,
$.04 Par Value 100,000 $5.28 $528,000 $49
(1) CALCULATED IN ACCORDANCE WITH RULE 457(C) BASED ON THE AVERAGE OF THE HIGH
AND LOW SALES PRICES OF THE COMMON STOCK AS REPORTED ON THE NASDAQ NATIONAL
MARKET ON MAY 17, 2002, SOLELY FOR PURPOSES OF CALCULATING THE AMOUNT OF
THE REGISTRATION FEE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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2
PRELIMINARY PROSPECTUS DATED MAY 20, 2002
100,000 SHARES
CRITICARE SYSTEMS, INC.
COMMON STOCK
C.C.R.I. Corporation is offering for sale up to 100,000 shares of our
common stock which are issuable by us upon exercise of warrants held by the
selling stockholder. Because the shares offered under this prospectus will be
sold by C.C.R.I. Corporation, we will not receive any proceeds from the sale of
these shares.
Shares of our common stock are traded on the Nasdaq National Market.
Trading Symbol on Nasdaq National Market: CXIM
Last Sale Price on May 17, 2002: $5.296 per share
_________________________________________
CONSIDER CAREFULLY THE "RISK FACTORS" BEGINNING ON PAGE 4 OF THIS PROSPECTUS.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________, 2002.
TABLE OF CONTENTS
PAGE
Summary . . . . . . . . . . . . . . 3
Risk Factors. . . . . . . . . . . . 4
Special Note Regarding
Forward-Looking Statements. . . 7
Use of Proceeds . . . . . . . . . . 7
Selling Stockholder . . . . . . . . 7
Plan of Distribution. . . . . . . . 8
Experts . . . . . . . . . . . . . . 9
Legal Matters . . . . . . . . . . . 9
Where You Can Find More Information 9
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED IN THIS PROSPECTUS OR THE
OTHER INFORMATION WE HAVE REFERRED YOU TO. WE HAVE NOT AUTHORIZED ANYONE TO
PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITY
OTHER THAN THE SHARES OF COMMON STOCK OFFERED BY THIS PROSPECTUS, NOR DOES IT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY SHARES OF
COMMON STOCK IN ANY JURISDICTION WHERE SUCH OFFER OR SOLICITATION WOULD BE
UNLAWFUL. YOU SHOULD ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE
ONLY AS OF THE DATE OF THIS PROSPECTUS, REGARDLESS OF THE TIME OF DELIVERY OF
THIS PROSPECTUS OR OF ANY SALE OF COMMON STOCK.
2
SUMMARY
This summary highlights selected information from this document and from
the documents that we incorporate by reference. For a more complete description
of the offering and Criticare, you should read carefully this entire document
and the documents to which we have referred you. See "Where You Can Find More
Information" (page 9).
CRITICARE SYSTEMS, INC.
20925 Crossroads Circle
Waukesha, Wisconsin 53186
(262) 798-8282
We design, manufacture and market vital signs and gas monitoring
instruments and related noninvasive sensors used to monitor patients in many
healthcare settings. Since a patient's oxygen, anesthetic gas and carbon
dioxide levels can change dramatically within minutes, causing severe side
effects or death, continuous monitoring of these parameters is increasing. Our
monitoring equipment improves patient safety by delivering accurate,
comprehensive and instantaneous patient information to physicians and other
health service clinicians. Our products also allow hospitals to contain costs
primarily by substituting cost-effective reusable pulse oximetry sensors for
disposable sensors, controlling the use of costly anesthetics and increasing
personnel productivity.
To meet the needs of end-users in a wide variety of patient settings, we
have developed a broad line of patient monitors which combine one or more of our
patented or other proprietary technologies, for monitoring:
- oxygen saturation;
- carbon dioxide; and
- anesthetic agents,
with standard monitoring technologies that provide:
- electrocardiogram;
- invasive and noninvasive blood pressure;
- temperature;
- heart rate; and
- respiration rate.
In addition, our VitalView telemetry system allows one nurse to monitor up
to eight patients simultaneously from a convenient central location. This
allows hospitals to move out of the intensive care unit those patients that
require continuous monitoring, but do not need all of an intensive care unit's
extensive and costly personnel and equipment resources.
THE OFFERING
Common stock offered by the 100,000 shares
selling shareholder
Common stock outstanding as 11,059,624 shares
of April 30, 2002
Proceeds from sale We will not receive any proceeds
from the sale of these shares.
3
RISK FACTORS
Before purchasing our stock, you should carefully consider the following
risk factors and the other information contained in this prospectus.
WE FACE SIGNIFICANT COMPETITION IN OUR MARKETS. AS A RESULT, WE MAY NOT BE ABLE
TO INCREASE OUR MARKET SHARE OR PROFIT MARGINS.
The markets for our products are highly competitive. Many of our
competitors have greater:
- engineering resources;
- research and development resources;
- manufacturing resources;
- financial and marketing resources; and
- market presence and reputation.
We have historically experienced substantial price competition for our
products and price competition is likely to continue.
OUR GROWING RELIANCE ON OFFSHORE CONTRACT MANUFACTURING MAKES OUR BUSINESS
SUSCEPTIBLE TO NUMEROUS RISKS THAT COULD AFFECT OUR PROFITABILITY.
In response to pricing pressure, in fiscal 2001 we entered into agreements
with two offshore contract manufacturing firms located in Ireland and Taiwan,
respectively. We completed the transition of the production of substantially
all of our established product lines to these manufacturing firms at the end of
calendar 2001. Our reliance on offshore contract manufacturing will subject us
to numerous risks, including the following:
- economic and political instability in the countries where the contract
manufacturing firms are located;
- restrictive actions by foreign governments;
- the laws and policies of the United States affecting the importation
of goods (including duties, quotas and taxes);
- production delays and cost overruns;
- quality control; and
- foreign trade and tax laws.
WE HAVE A HISTORY OF LOSSES. IF WE DO NOT ACHIEVE PROFITABILITY, OUR FINANCIAL
CONDITION AND STOCK PRICE COULD SUFFER.
We had net losses of $186,388 in fiscal 2000, $178,232 in fiscal 2001 and
$1,111,106 in the first nine months of fiscal 2002. We cannot assure you that
we will be able to achieve or sustain profitability in future periods.
OUR SUCCESS DEPENDS ON OUR ABILITY TO INTRODUCE NEW PRODUCTS.
Our future growth will depend in large part upon our ability to continue to
conceive, design, and market new products and upon continuing market acceptance
of our existing and future products. Any significant delays in the introduction
of, or the failure to introduce, new products or additions to our existing
product lines or the failure of our existing or future products to maintain or
receive market acceptance could have a material adverse effect on our business,
results of operations or financial condition.
OUR SUCCESS DEPENDS ON OUR ABILITY TO PROTECT OUR INTELLECTUAL PROPERTY.
We rely on our patented and other proprietary technology including:
- our sensor technology;
- infrared specific anesthetic gas monitoring technology;
- UltraSync signal processing software; and
- disposable respiratory secretion filter system.
4
The actions taken by us to protect our proprietary rights may not be
adequate to prevent imitation of our products, processes or technology. We can
not assure you that:
- our proprietary information will not become known to competitors;
- others will not independently develop substantially equivalent or
better products that do not infringe on our intellectual property
rights; or
- others will not challenge or assert rights in, and ownership of, our
patents and other proprietary rights.
Although none of our United States patents expire before 2004, to the
extent competitors develop equivalent or superior non-infringing technology in
these areas, or to the extent that we are unable to enforce our patents, our
ability to market and sell our products could be harmed.
INTERNATIONAL SALES MAKE OUR BUSINESS SUSCEPTIBLE TO NUMEROUS INTERNATIONAL
BUSINESS RISKS AND CHALLENGES THAT COULD AFFECT OUR PROFITABILITY.
International sales accounted for 41% of our total net sales for the 2001
fiscal year. We expect that international sales will continue to constitute a
significant portion of our business. Although we sell our products in United
States dollars and are not subject to significant currency risks, an increase in
the value of the United States dollar relative to foreign currencies in our
international markets could make our products less price competitive in such
markets. Also, our international sales are subject to the risks inherent in
doing business abroad, including:
- delays in shipments;
- increases in import duties and tariffs; and
- changes in foreign regulations and political climate.
WE OPERATE IN A HIGHLY REGULATED INDUSTRY.
Our products are subject to regulation by the United States Food and Drug
Administration and comparable foreign governmental authorities. These
regulations can be burdensome and may:
- substantially delay or prevent the introduction of new products;
- materially increase the costs of any new product introductions;
- interfere with or require cessation of product manufacturing and
marketing; and
- result in product recalls.
Additionally, adoption of new regulations or modifications to applicable
regulations could harm our business.
HEALTH CARE COST CONTAINMENT PROGRAMS COULD ADVERSELY AFFECT OUR DOMESTIC SALES.
The cost of a significant portion of medical care in the United States and
in international markets is funded by government or other insurance programs.
Additional limits imposed by such programs on health care cost reimbursements
may further impair the ability of hospitals and other health care providers to
purchase equipment such as our products and could reduce our domestic sales.
OUR BUSINESS IS SUBJECT TO POSSIBLE PRODUCT LIABILITY EXPOSURE.
As a manufacturer of medical diagnostic equipment, we could face product
liability claims. We have had no product liability claims to date and maintain
product liability insurance. However, we can make no assurance that our
insurance coverage will be adequate to cover any product liability claims which
arise in the future or that it will continue to be available at reasonable
prices.
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OUR STOCK PRICE MAY FLUCTUATE, INCREASING THE RISK TO INVESTORS IN OUR COMMON
STOCK.
Market prices of securities of medical technology companies, including our
common stock, have experienced significant volatility from time to time. There
may be volatility in the market price of our common stock due to factors that
may or may not relate to our performance. Various factors and events may have a
significant impact on the market price of our common stock such as:
- announcements by us or our competitors concerning new product
developments;
- governmental approvals, regulations or actions;
- developments or disputes relating to patent or proprietary rights;
- public concern over product liability; and
- general economic and market conditions.
In addition, our quarterly results have historically fluctuated.
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
We have made forward-looking statements in this document that are subject
to risks and uncertainties. Without limitation, these forward-looking
statements include statements:
- regarding new products we may introduce in the future;
- about our business strategy and plans;
- about the adequacy of our working capital and other financial
resources; and
- that are not of an historical nature.
When we use words such as "believes," "expects," "anticipates," "will,"
"would," "projects" or similar expressions, we are making forward-looking
statements. You should note that forward-looking statements rely on a number of
assumptions concerning future events, and are subject to a number of
uncertainties and other factors, many of which are outside of our control, that
could cause actual results to differ materially from the statements made. These
factors include those discussed under the caption "Risk Factors" in this
prospectus. Please note that we disclaim any intention or obligation to update
or revise any forward-looking statements whether as a result of new information,
future events or otherwise.
USE OF PROCEEDS
We will not receive any proceeds from the sale of the shares by the selling
stockholder. If the selling stockholder exercises its warrants in full we would
receive proceeds of $221,250 from the selling stockholder. We intend to use any
proceeds from the exercise of the warrants by the selling stockholder for
general business purposes, including working capital.
SELLING STOCKHOLDER
All of the shares of our common stock offered for sale pursuant to this
prospectus are being offered by C.C.R.I. Corporation. Beginning on September
21, 1995, we engaged the selling stockholder as a consultant to provide investor
relations and development services. In February 1998, we issued a warrant to
purchase up to 150,000 shares of our common stock to the selling stockholder
with an exercise price of $3.00 per share. This warrant was exercisable as to
30,000 shares on issuance and the remaining 120,000 shares underlying this
warrant were to become exercisable if certain performance parameters were
achieved by February 1999. Since these performance parameters were not achieved
this warrant is currently exercisable for 30,000 shares. This warrant expires
in February 2003. In December 2000, we issued a warrant to purchase up to
70,000 shares of our common stock to the selling stockholder with an exercise
price of $1.875 per share. This warrant vests over a four year period in four
equal increments each year on the anniversary date of the warrant. The warrant
terminates as to any shares that are unvested at the time the consultant ceases
to provide consulting services to us. This warrant expires in December 2005.
Shares of Common Stock Shares Offered Shares to be Owned Relationship
Owned Prior to Offering for Sale Hereby After the Offering* to Criticare
----------------------- --------------- ------------------- ------------
Number Percent
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C.C.R.I. Corporation 100,000 100,000 - - Consultant
*Assumes sale of all shares offered hereby.
7
PLAN OF DISTRIBUTION
The selling stockholder may, without limitation and from time to time, sell
all or a portion of its shares of our common stock being registered under this
prospectus on any stock exchange, market or trading facility on which the common
stock is traded, at market prices prevailing at the time of sale, fixed prices
or at negotiated prices. The shares may, without limitation, be sold by the
selling stockholder by one or more of the following methods:
- ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
- block trades in which the broker-dealer engaged by the selling
stockholder will attempt to sell the shares as agent for the selling
stockholder but may position and resell a portion of the block as
principal to facilitate the transaction;
- purchases by a broker-dealer as principal and resale by such
broker-dealer for its account;
- privately negotiated transactions;
- in accordance with Rule 144 promulgated under the Securities Act of
1933, as amended, rather than pursuant to this prospectus;
- a combination of any such methods of sale; or
- any other method permitted pursuant to applicable law.
From time to time the selling stockholder may pledge its shares pursuant to
the margin provisions of the selling stockholder's customer agreements with its
brokers. Upon a default by the selling stockholder, the broker may, from time
to time, offer and sell the pledged shares.
In effecting sales, brokers-dealers engaged by the selling stockholder may
arrange for other broker-dealers to participate in such sales. Brokers-dealers
may receive commissions or discounts from the selling stockholder (or, if any
such broker-dealer acts as agent for the purchase of such shares, from such
purchaser) in amounts to be negotiated which are not expected to exceed those
customary in the types of transactions involved. Broker-dealers may agree with
the selling stockholder to sell a specified number of shares of the common stock
at a stipulated price per share, and, to the extent such broker-dealer is unable
to do so acting as agent for the selling stockholder, to purchase as principal
any unsold shares at the price required to fulfill the broker-dealer commitment
to the selling stockholder.
The selling stockholder and any broker-dealers or agents that participate
with the selling stockholder in sales of the shares may be deemed to be
"underwriters" within the meaning of the Securities Act of 1933, as amended, in
connection with such sales. In such event, any commissions received by such
broker-dealers or agents and any profit on the resale of the shares purchased by
them may be deemed to be underwriting commissions or discounts under the
Securities Act of 1933, as amended.
We are required to pay all fees and expenses incident to the registration
of the selling stockholder's shares, other than the fees and disbursements of
counsel to the selling stockholder and underwriting discounts or commissions, if
any. Additionally, we have agreed to indemnify the selling stockholder from
certain liabilities in connection with the offering, including liabilities under
the federal securities laws.
8
EXPERTS
The consolidated financial statements as of June 30, 2001 and 2000 and for
each of the three years in the period ended June 30, 2001, and the related
consolidated financial statement schedule for each of the three years in the
period ended June 30, 2001 incorporated in this prospectus by reference from
Criticare's Annual Report on Form 10-K for the year ended June 30, 2001 have
been audited by BDO Seidman, LLP, independent auditors, as stated in their
reports, which are incorporated in this prospectus 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.
LEGAL MATTERS
The legality of the shares offered hereby will be passed upon for Criticare
by Reinhart Boerner Van Deuren s.c.
WHERE YOU CAN FIND MORE INFORMATION
We file reports, proxy statements and other information with the Securities
and Exchange Commission (SEC). You may read and copy any reports, proxy
statements or other information we file at the SEC's public reference room at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference rooms. You
can also obtain copies of our SEC filings by writing to the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. In
addition, many of our SEC filings are available at the SEC's site on the World
Wide Web at "http//www.sec.gov."
We have filed a Registration Statement on Form S-3 to register with the SEC
the shares of our common stock offered for sale by the selling stockholder.
This prospectus is part of that registration statement. As allowed by SEC
rules, this prospectus does not contain all the information you can find in the
registration statement or the exhibits to the registration statement, which are
incorporated in this prospectus by reference. Statements contained in this
prospectus concerning the provisions of documents are necessarily summaries of
such documents, and each statement is qualified in its entirety by reference to
the copy of the applicable document filed with the SEC.
The SEC allows us to "incorporate by reference" information in this
prospectus, which means we can disclose important information to you by
referring you to another document filed separately with the SEC. The
information that we incorporate by reference is deemed to be part of this
prospectus, except for any information superseded by information in this
prospectus. This prospectus incorporates by reference the documents set forth
below. These documents contain important information about Criticare and its
finances.
- Criticare's Annual Report on Form 10-K for the fiscal year ended June
30, 2001, filed on September 27, 2001, as amended on May 20, 2002.
- Criticare's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2001, filed on November 14, 2001.
- Criticare's Quarterly Report on Form 10-Q for the quarter ended
December 31, 2001, filed on February 7, 2002.
- Criticare's Quarterly Report on Form 10-Q for the quarter ended March
31, 2002, filed on May 15, 2002.
- The description of our common stock which is contained in the
Registration Statement on Form 8-A filed on July 22, 1987 under the
Exchange Act, including all amendments and reports filed for the
purpose of updating such description.
We are also incorporating by reference all additional documents that we
file with the Commission between the date of this prospectus and the termination
of the offering.
We will, without charge, provide you with copies of any of the documents
which are incorporated in this prospectus by reference (other than exhibits to
such documents unless we have specifically incorporated those exhibits by
reference into this prospectus). To obtain copies, please write or call Michael
J. Sallmann, Vice President - Finance and Secretary, Criticare Systems, Inc.,
20925 Crossroads Circle, Waukesha, Wisconsin 53186, (262) 798-8282.
9
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses relating to the registration of the shares of common stock
being offered hereby, other than underwriting discounts and commissions, will be
borne by the Company. Such expenses are estimated to be as follows:
ITEM AMOUNT
---- -------
Securities and Exchange Commission
Registration Fee . . . . . . . . . . . $ 49
Printing and Engraving Fees. . . . . . 5,000
Legal Fees and Expenses. . . . . . . . 10,000
Accounting Fees and Expenses . . . . . 5,000
Miscellaneous Expenses . . . . . . . . 1,000
-------
$21,049
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Total
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's By-Laws provide that the Company shall, to the fullest extent
permitted by the Delaware General Corporation Law and other applicable laws, as
in effect from time to time, indemnify any person who was or is a party or is
threatened to be made a party to any formal or informal threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative, including, without limitation, any action brought under federal
or state securities laws, rules or regulations (collectively, "Actions"), other
than in certain limited circumstances, because he is or was a director or
officer of the Company, or because he is or was a director or officer of the
Company and is or was serving at the request of the Company as a director,
officer, employee, consultant or agent of another corporation or other
enterprise or is or was serving at the request of the Company as a fiduciary of
an employee benefit plan or as an employee or agent of the Company; provided,
however, that no director or officer shall be entitled to indemnification
unless, with respect to the conduct that is the subject of the Action, he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interest of the Company and, with respect to any criminal action or
proceeding, he had no reasonable cause to believe his conduct was unlawful.
This indemnification obligation mirrors the permissive indemnification provided
under section 145 of the Delaware General Corporation Law. The determination of
whether indemnification is proper under the circumstances, unless made by a
court, shall be made (a) by arbitration; (b) by the Board of Directors by a
majority vote of a quorum consisting of directors who are not parties to the
subject Action; (c) if such quorum is not obtainable or, even if obtainable, a
quorum of disinterested directors so directs, by independent legal counsel in a
written opinion; or (d) by the affirmative vote of a majority of the shares
entitled to vote thereon.
The Company's Certificate of Incorporation provides that a director will
not be personally liable for monetary damages to the Company or its stockholders
for or with respect to any acts or omissions in the performance of his or her
duties as a director, except for liability (i) for any breach of the director's
duty of loyalty to such corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) for paying a dividend or approving a stock repurchase in
violation of section 174 of the Delaware General Corporation Law or (iv) with
respect to any transaction from which the director derived an improper personal
benefit.
II-1
Article VI, section 6.01 of the Company's Restated By-Laws provides that a
director or officer is not liable to the Company for damages arising out of any
action taken or omitted to be taken by such person if he exercised and used the
same degree of care and skill as a prudent man would have exercised or used
under the circumstances in the conduct of his own affairs or took or omitted to
take such action in reliance on the advice of the Company's counsel or
statements made or information furnished by officers or employees of the Company
which he had reasonable grounds to believe were true.
The indemnification provided as set forth above is not exclusive of any
other rights to which a director or an officer of the Company may be entitled.
The general effect of the foregoing provisions is to reduce the
circumstances in which an officer or director may be required to bear the
economic burdens of the foregoing liabilities and expenses.
ITEM 16. EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
------- ------------
4.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to the Registration Statement filed on Form S-1,
Registration No. 33-13050).
4.2 By-Laws of the Company (incorporated by reference to the Registration
Statement filed on Form S-1, Registration No. 33-1305).
4.3 Specimen Common Stock certificate (incorporated by reference to the
Registration Statement filed on Form S-1, Registration No. 33-13050).
4.4 Rights Agreement (incorporated by reference to the Company's Current
Report on Form 8-K filed on April 18, 1997).
5 Opinion of Reinhart Boerner Van Deuren s.c.
23.1 Consent of BDO Seidman, LLP.
23.2 Consent of Reinhart Boerner Van Deuren s.c. (included in its opinion
filed as Exhibit 5 hereto).
24 Power of Attorney (incorporated by reference to the signature page
hereof).
II-2
ITEM 17. UNDERTAKINGS
The undersigned Registrant undertakes as follows:
1. To file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(a) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(b) 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,
represent a fundamental change in the information set forth in the Registration
Statement; Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement, and
(c) 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 1(a) and (b) will not apply if 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 15(d) of the
Securities Exchange Act of 1934 and which are incorporated by reference in this
Registration Statement.
2. That, for the purposes 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.
4. 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 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan annual report pursuant to
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.
5. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed 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.
II-3
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-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Waukesha, State of Wisconsin, on the 7th day of May,
2002.
CRITICARE SYSTEMS, INC.
BY /s/ Emil H. Soika
---------------------------
Emil H. Soika, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Emil H. Soika and
Michael J. Sallmann, and each of them individually, his true and lawful
attorney-in-fact, with power to act with or without the other and with full
power of substitution, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to the registration statement and 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 full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, 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 their substitutes, may lawfully 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
/s/ Emil H. Soika
-----------------------
Emil H. Soika President, Chief Executive
Officer and Director
(Principal Executive Officer) May 7, 2002
/s/ Karsten Houm
-----------------------
Karsten Houm Chairman of the Board
and Director May 7, 2002
/s/ Michael J. Sallmann
-----------------------
Michael J. Sallmann Vice President-Finance and Secretary
(Principal Financial Officer and
Principal Accounting Officer) May 7, 2002
/s/ Milton Datsopoulos
-----------------------
Milton Datsopoulos Director May 7, 2002
/s/ N.C. Joseph Lai
-----------------------
N.C. Joseph Lai Director May 13, 2002
/s/ Jeffrey T. Barnes
-----------------------
Jeffrey T. Barnes Director May 13, 2002
/s/ Higgins D. Bailey
-----------------------
Higgins D. Bailey Director May 9, 2002
/s/ Stephen K. Tannenbaum
-------------------------
Stephen K. Tannenbaum Director May 8, 2002
II-4
EXHIBIT INDEX
EXHIBIT PAGE
NUMBER DESCRIPTION NUMBER
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5 Opinion of Counsel
23.1 Consent of BDO Seidman, LLP,
Independent Auditors