-----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, GARNqiXKivJd3+Gr23E/ciAhSr0EazQdCSZ9GaM0FcgxdEXqhWeUCgD/i6bxJzmG 8bZNKbVIR5QDeVnZel6/mw== 0001019687-00-000309.txt : 20000411 0001019687-00-000309.hdr.sgml : 20000411 ACCESSION NUMBER: 0001019687-00-000309 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000329 EFFECTIVENESS DATE: 20000329 FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOMERICA INC CENTRAL INDEX KEY: 0000073290 STANDARD INDUSTRIAL CLASSIFICATION: DENTAL EQUIPMENT & SUPPLIES [3843] IRS NUMBER: 952645573 STATE OF INCORPORATION: DE FISCAL YEAR END: 0531 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-33494 FILM NUMBER: 582625 BUSINESS ADDRESS: STREET 1: 1533 MONROVIA AVENUE CITY: NEWPORT BEACH STATE: CA ZIP: 92663 BUSINESS PHONE: 9496452111 MAIL ADDRESS: STREET 1: 1533 MONROVIA AVENUE CITY: NEWPORT BEACH STATE: CA ZIP: 92663 FORMER COMPANY: FORMER CONFORMED NAME: NMS PHARMACEUTICALS INC DATE OF NAME CHANGE: 19871130 FORMER COMPANY: FORMER CONFORMED NAME: NUCLEAR MEDICAL SYSTEMS INC DATE OF NAME CHANGE: 19830216 FORMER COMPANY: FORMER CONFORMED NAME: NUCLEAR INSTRUMENTS INC DATE OF NAME CHANGE: 19720508 S-8 1 BIOMERICA, INC. UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1934 BIOMERICA, INC. (Exact name of registrant as specified in its charter) Delaware 95-2545573 - ------------------------------ ----------------- (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 1533 Monrovia Avenue Newport Beach, California 92663 ---------------------------------------------- ----- (Address of Principal Executive Offices) (Zip Code) Biomerica, Inc. 1999 Stock Incentive Plan ----------------------------------------- (Full title of the plan) Zackary S. Irani Biomerica, Inc. 1533 Monrovia Avenue Newport Beach., California 92663 -------------------------------- (Name and address of agent for service) 949-645-2111 ---------------------------------------------------- (Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE ======================== ==================== ==================== ========================== ====================== Proposed maximum Title of securities to Amount to be offering price per Proposed maximum Amount of be registered registered unit aggregate offering price registration fee - ------------------------ -------------------- -------------------- -------------------------- ---------------------- Common Stock, $.08 par 1,000,000 shares $3.328125(1) $3,328,125(1) $878.63 value ======================== ==================== ==================== ========================== ======================
1) Based upon the average of the high and low prices for the Registrant's common stock reported on the NASDAQ SmallCap Market on March 23, 2000 for purposes of computing the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act of 1933, as amended. PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS The documents containing the information required by Part I (plan information and registrant information) will be sent or given to employees as specified by Rule 428(b)(1). Such documents need not be filed with the Securities and Exchange Commission either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in the registration statement pursuant to Item 3 of Part II of this Form, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed by Biomerica, Inc. (the "Registrant") with the Securities and Exchange Commission (the "Commission") are incorporated in and made part of this registration statement by reference, except to the extent that any statement or information therein is modified, superseded or replaced by a statement or information contained in any other subsequently filed document incorporated herein by reference. (1) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended May 31, 1999. (2) Amendment to the Registrant's Annual Report filed on Form 10-KSB/A for the Registrant's fiscal year ended May 31, 1999. (3) The Registrant's Quarterly Reports on Form 10-QSB for the quarters ended August 31, 1999 and November 30, 1999. (4) The Registrant's Proxy Statement dated September 27, 1999 for the Registrant's Annual Meeting of Stockholders held on October 25, 1999. (5) The description of the Registrant's common stock, $.08 par value ("Common Stock") filed with the Commission on September 16, 1999 (File No. 333-87231) describing the Common Stock referred to herein, including any amendment or report filed to update the description. All documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the filing hereof 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 and to be a part hereof from the date of filing such documents. For purposes of this registration statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement. Item 4. Description of Securities Not applicable. Item 5. Interests of Named Experts and Counsel Not applicable. Item 6. Indemnification of Directors and Officers Section 145 of the Delaware General Corporation Law (the "Delaware GCL") empowers a Delaware corporation, including the Registrant, to indemnify its directors, officers, employees, and agents under certain circumstances. The Registrant's Certificate of Incorporation (the "Certificate") provides that the Registrant shall indemnify directors and officers, and may indemnify employees and agents, to the full extent authorized by law. The Certificate further provides that the Registrant may purchase and maintain liability insurance on behalf of directors, officers, employees or agents of the Registrant, whether or not the Registrant would have the power to indemnify them against such liability under the provisions of the Delaware GCL. Moreover, the Certificate provides that no director of the Registrant shall be personally liable to the Registrant or its stockholders for monetary damages for any breach of fiduciary duty as a director, except (i) for any breach of the duty of loyalty to the Registrant 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 liability under Section 174 of the Delaware GCL (involving certain unlawful dividends or stock repurchases), or (iv) for any transaction from which the director derived an improper personal benefit. Under the Delaware GCL, to the extent that an officer or director of a corporation is successful on the merits in the defense of an action, the corporation must indemnify such person for his or her actual and reasonable expenses incurred in connection with such defense. The Certificate provides that the Registrant shall pay the expenses of an indemnifiable person in defending a proceeding in advance of the final disposition; but under the Delaware GCL such advancement of expenses may be made to a director or officer only if such person provides an undertaking to reimburse the Registrant if it is ultimately determined that such person is not entitled to be indemnified against such expenses. The Certificate provides that if a claimant to an indemnification payment is not paid in full by the Registrant within 30 days after the Registrant has received a written claim, the claimant may bring suit against the Registrant to recover the unpaid amount and if successful in whole or in part, the claimant shall be entitled to be paid the expenses of prosecuting such claim. However, with the exception of such claims to indemnification payments as noted above, the Registrant shall not indemnify any director or officer seeking indemnification in connection with a proceeding initiated by such person unless such proceeding was authorized by the Registrant's Board of Directors. 2 Under its Bylaws, the Registrant is required to indemnify its directors and officers against expenses and other liabilities if such person acted in good faith and for a purpose he or she reasonably believed to be in the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful; provided, however, that if the action or proceeding is by or in the right of the Registrant, indemnification shall not be made in respect of any matter as to which such person shall have been adjudged to be liable to the Registrant for negligence or misconduct in the performance of his or her duty to the Registrant. The Registrant maintains officers and directors liability insurance policy insuring the Registrant's officers and directors against certain liabilities and expenses incurred by them in their capacities as such. Item 7. Exemption from Registration Claimed Not Applicable. Item 8. Exhibits 4.1 Form of Stock Certificate (incorporated by reference to Exhibit 4.1 filed with the Registration Statement on Form SB-2 filed with the Commission on September 16, 1999, Commission File No. 333-87231). 5.1 Opinion of Jeffers, Shaff & Falk, LLP 10.1 Biomerica, Inc. 1999 Stock Incentive Plan (incorporated by reference to Exhibit B filed with the Registrant's Proxy Statement for the 1999 Annual Meeting of Stockholders on September 13, 1999). 23.1 Consent of Jeffers, Shaff & Falk, LLP (included in Exhibit 5.1) 23.2 Consent of BDO Seidman, LLP. 23.3 Consent of Corbin & Wertz. Item 9. Undertakings (a) The Registrant hereby undertakes to file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (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, represent a fundamental change in the information set forth in this 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; 3 Provided, however, that paragraphs (a)(i) and (a)(ii) do 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 Section 15(d) of the Securities Exchange Act of 1934, that are incorporated by reference in the registration statement. (b) That, for the purposes 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; (c) The Registrant hereby undertakes to remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering; 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 Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's 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. 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 Commission such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue. 4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newport Beach, and State of California on March 27, 2000. BIOMERICA, INC. By: /S/ ZACKARY S. IRANI ---------------------------- Zackary S. Irani, President Pursuant to the requirements of the Securities Act, this registration statement has been signed below by the following persons in the capacities and on the dates indicated: /s/ Zackary S. Irani Chairman of the March 27, 2000 - ------------------------------------- Board, Chief Zackary S. Irani Executive Officer /s/ Janet Moore Director, March 27, 2000 - ------------------------------------- Chief Financial Officer Janet Moore & Secretary /s/ Dr. Francis Cano Director March 27, 2000 - ------------------------------------- Dr. Francis Cano /s/ Dr. Robert Orlando Director March 27, 2000 - ------------------------------------- Dr. Robert Orlando, M.D., Ph.D. /s/ Dr. Carlos St. Aubyn Beharie Director March 27, 2000 - ------------------------------------- Dr. Carlos St. Aubyn Beharie, M.D. /s/ Allen Barbieri Director March 27, 2000 - ------------------------------------- Allen Barbieri /s/ David Burrows Director March 27, 2000 - ------------------------------------- David Burrows 5 EX-5.1 2 OPINION LETTER JEFFERS, SHAFF & FALK, LLP ATTORNEYS AT LAW 18881 VON KARMAN AVENUE SUITE 1400 IRVINE, CALIFORNIA 92612 TELEPHONE: (949) 660-7700 FACSIMILE: (949) 660-7799 March 28, 2000 Biomerica, Inc. 1533 Monrovia Avenue Newport Beach, California 92663 Attention: Zackary S. Irani Re: Issuance of Shares Pursuant to S-8 Registration Statement --------------------------------------------------------- Dear Mr. Irani: This letter relates to the issuance of up to 1,000,000 shares of common stock, $.08 par value (the "Shares"), of Biomerica, Inc., a Delaware corporation (the "Company") registered pursuant to that Registration Statement on Form S-8, filed with the Securities and Exchange Commission on March 28, 2000 (the "Registration Statement"). You have requested that we deliver to you an opinion as to whether the Shares will have been duly authorized, validly issued, and, when issued, will be fully paid and non-assessable shares of common stock of the Company. We have also examined the Certificate of Incorporation, as amended, and such other corporate records, including the resolutions of the Company's Board of Directors, and such other documents as we have deemed necessary in order to express the opinion set forth below. In our examination we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity of all originals of all documents submitted to us as copies. As to questions of fact material to such opinion, we have relied upon statements and representations of the Company. Our opinion is based on existing law that is subject to change either prospectively or retroactively. Relevant laws could change in a manner that could adversely affect the Company or its stockholders. We have no obligation to inform the Company of any such change in the law. We have not been requested to opine, and we have not opined, as to any issues other than those expressly set forth herein. This opinion extends only to questions relating to the validity of the Shares offered and sold under the Registration Statement. We express no opinion with respect to any other issue. We are admitted to practice law in the State of California and our opinion is limited to federal law and the corporate laws of the State of California and the State of Delaware that affect such opinion. We express no opinion with respect to any other law or the laws of any other jurisdiction. Assuming the Shares are issued and paid for in accordance with the terms of the offering described in the Registration Statement, including documents incorporated by reference thereto, and when certificates representing such Shares have been issued to the purchasers, based on the foregoing, we are of the opinion that the Shares will have been duly authorized, validly issued, and will be fully paid and non-assessable shares of common stock of the Company. Biomerica, Inc. March 28, 2000 Page 2 For purposes of rendering this opinion we have made such legal and factual inquiries as we have deemed necessary under the circumstances. Although we have not independently verified all of the facts relied upon for purposes hereof, nothing has come to our attention that has led us to believe that the facts are other than as stated herein or that there exist other material facts not considered. Our Opinion contained herein is solely for the benefit of the Company and may be relied upon by the Company only in connection with the Registration Statement. In this regard, we hereby consent to the filing of this opinion, including this consent, as an exhibit to the Registration Statement. Very truly yours, /s/ Jeffers, Shaff & Falk, LLP EX-23.2 3 CONSENT OF BDO SEIDMAN CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS Biomerica, Inc. and Subsidiaries Newport Beach, California We hereby consent to the incorporation by reference in the Prospectus constituting a part of this Registration Statement of our report dated July 29, 1999, relating to the consolidated financial statements of Biomerica, Inc. and Subsidiaries appearing in the Company's Annual Report on Form 10-KSB for the year ended May 31, 1999. We also consent to the reference to us under the caption "Experts" in the Prospectus. /S/ BDO SEIDMAN, LLP BDO SEIDMAN, LLP Costa Mesa, California March 21, 2000 EX-23.3 4 CONSENT OF CORBIN & WERTZ ================================================================================ CORBIN & WERTZ A COMPANY OF PROFESSIONAL SERVICES CONSENT OF INDEPENDENT AUDITORS Board of Directors Biomerica, Inc. and subsidiaries We hereby consent to the incorporation by reference in this Registration Statement of Biomerica, Inc. (the "Company") on Form S-8 of our report dated July 24, 1998, on our audit of the consolidated financial statements of the Company for the year ended May 31, 1998, which report is included in the Company's Annual Report on Form 10-KSB (File No. 000-08765) for the year ended May 31, 1999. We also consent to the use of our name as it appears under the caption "Experts." /S/ CORBIN & WERTZ CORBIN & WERTZ Irvine, California March 23, 2000 -----END PRIVACY-ENHANCED MESSAGE-----