-----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, VRW342qfNplauxAfinVyR3zdS8e3FCw5GhbYqTVU5MW82uwK3HA3jyaJXTtNkRCC Eh+FrGglkZbf4TPPlEVNHg== 0000830736-97-000004.txt : 19970306 0000830736-97-000004.hdr.sgml : 19970306 ACCESSION NUMBER: 0000830736-97-000004 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19970305 EFFECTIVENESS DATE: 19970305 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: BIOPOOL INTERNATIONAL INC CENTRAL INDEX KEY: 0000830736 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 581729436 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-22819 FILM NUMBER: 97551072 BUSINESS ADDRESS: STREET 1: 6025 NICOLLE ST SUITE A CITY: VENTURA STATE: CA ZIP: 93003 BUSINESS PHONE: 8056540643 MAIL ADDRESS: STREET 1: 6025 NICOLLE STREET CITY: VENTURA STATE: CA ZIP: 93003 FORMER COMPANY: FORMER CONFORMED NAME: CYTRX BIOPOOL LTD DATE OF NAME CHANGE: 19890716 S-8 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ____________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ____________ BIOPOOL INTERNATIONAL, INC. (Exact name of registrant as specified in its charter) Delaware (State or other jurisdiction of Incorporation) 58-1729436 (I.R.S. employer identification No.) 6025 Nicolle Street, Suite A, Ventura, California 93003 (Address of principal executive offices) (Zip Code) Biopool International, Inc. 1993 Stock Incentive Plan (Full title of plan) Michael D. Bick Ph.D. 6025 Nicolle Street, Suite A Ventura, California 93003 (Name and address of agent for service) (805) 654-0643 (Telephone number, including area code, of agent for service) ____________ Copies to: Scott W. Alderton, Esq. Troop Meisinger Steuber & Pasich 10940 Wilshire Blvd. Suite 800 Los Angeles, California 90024 (310) 824-7000 ____________ CALCULATION OF REGISTRATION FEE ___________________________________________________________________ Proposed Proposed Title of Maximum Maximum Securities Amount Offering Aggregate Amount to be to be Price Per Offering Registration Registered Registered Share (1) Price (1) Fee ___________________________________________________________________ Common Stock 1,650,000 $3.00 $4,950,000 $1,706.90 ___________________________________________________________________ (1) Estimated solely for purposes of calculating the registration fee pursuant to Rule 457. PART II Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents are incorporated herein by reference: (a) Registrant's Annual Report on Form 10-K, for the fiscal year ended December 31, 1995; (b) Registrant's Quarterly Report on Form 10-Q, for the quarters ended March 31, 1996, June 30, 1996 and September 30, 1996; and (c) The information under the caption "DESCRIPTION OF SECURITIES--Common Stock" on Page 35 of Registrant's Registration Statement on Form S-1 (Registration No. 33-20584). All documents subsequently filed by Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 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 part hereof from the date of filing of such documents. Item 4. DESCRIPTION OF SECURITIES. The securities to be offered are registered under Section 12 of the Exchange Act. Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. None. Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Section 145 of the Delaware General Corporation Law ("DGCL") provides that the Registrant may indemnify an officer or director who is made a party or threatened to be made a party to any action or proceeding (including a law suit or derivative action) because of his position, against expenses actually and reasonably incurred by him in connection with the action, if he acted in good faith in a manner he reasonably believed to be in or not opposed to the best interests of the Registrant, and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his conduct was unlawful. If the officer or director is adjudged liable to the Registrant, indemnity can be made only by court order. If the director or officer is successful on the merits or otherwise, he must be indemnified against all expenses actually and reasonably incurred. Also, Section 145 of the DGCL provides that the Registrant may advance expenses incurred by a director or officer in defending an action or proceeding if the director or officer agrees to repay such amounts if it is determined that he is not entitled to be indemnified. Article VII, Section 8.1 of the Registrant's Bylaws provides that the Registrant shall (a) indemnify any officer or director who is made a party or threatened to be made a party to any action or proceeding by or in the right of the Registrant, because of his or her position, against expenses actually and reasonably incurred by him in connection with the action or proceeding, and (b) indemnify any officer or director who is made a party or threatened to be made a party to any action or proceeding (other than an action by or in the right of the Registrant), because of his or her position, against expenses, judgements, fines and settlements actually and reasonably incurred by him in connection with the action or proceeding, to the fullest extent permissible under subsections (a) through (e) of Section 145 of the DGCL. Thus, directors and officers of the Registrant will be indemnified by the Registrant provided that each such person acted in good faith and in a manner that he reasonably believed was in or not opposed to the Registrant's best interests, and, with respect to any criminal action, if such person had no reasonable cause to believe that his conduct was unlawful. The Registrant may not indemnify a director or officer, absent of court order, if such person was found liable to the Registrant and the Registrant must indemnify any director or officer who is successful on the merits of his defense. Additionally, the Registrant may advance expenses to a director or officer in accordance with Section 145 of the DGCL summarized in the preceding paragraph. The Registrant's Certificate of Incorporation provides that the personal liability of the directors of the corporation is eliminated to the fullest extent permitted by Section 102(b)(7) of the DGCL. Section 102(b)(7) permits the Registrant to eliminate the personal liability of its directors to the Registrant, or any of its stockholders, for monetary damages resulting from the breach of the director's fiduciary duty, except for liability (i) for any breach of the director's duty of loyalty to the Registrant or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or knowing violation of law, (iii) pursuant to Section 174 of the DGCL (involving certain unlawful dividends or stock purchases, as described more fully below), or (iv) for any transaction for which the director derived an improper personal benefit (the "Liability Provision"). The Liability Provision provides the Registrant's directors with the full protection against personal liability that is permitted under the DGCL. The Liability Provision eliminates personal liability of director to the Registrant or its stockholders for monetary damages in the future if there is any breach of fiduciary duty (including, without limitation, any liability for gross negligence in the performance of their duties), except (i) for any breach of the director's duty of loyalty, (ii) for failure to act in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for violations of section 174 of the DGCL or (v) for any transaction from which the director derived an improper personal benefit. Section 174 of the DGCL provides that directors shall, under certain circumstances, be jointly and severally liable for willful or negligent violations of Sections 160 and 173 of the DGCL. Section 160 of the DGCL imposes certain requirements with respect to stock repurchases and redemptions, and Section 173 of the DGCL imposes certain requirements with respect to dividends. Subject to these exceptions, under the Liability Provision, directors do not have any personal liability to the Registrant or its stockholders for any violation of fiduciary duty. The limitation of liability only applies to claims by the Registrant or its stockholders and does not preclude or limit recovery of damages by third parties, such as creditors. The Liability Provision further provides that any repeal or modification of the limitations on liability set forth in the Liability Provision does not apply to acts or omissions of directors that occurred before such repeal or modification. The effect of the Liability Provision is to eliminate personal liability of directors for violations of their fiduciary duty of care. The Liability Provision absolves directors from liability to the Registrant or its stockholders for negligence in the performance of their duties, including gross negligence. The Liability Provision does not, however, insulate directors of the Registrant from liability to the Registrant or its stockholders for breach of the duty of loyalty and for other types of "bad faith" conduct. While the Liability Provision protects directors from awards of monetary damages for breaches of the duty of care, it does not eliminate or change the duty of care. Accordingly, the Liability Provision does not limit the availability of equitable remedies, such as an injunction or rescission based on a directors's breach of the duty of care, although, as a practical matter, equitable remedies may not be available (e.g., after a transaction has already been effected). The Liability Provision eliminates the liability of directors only for future conduct and does not apply to acts or omission of directors that occurred before its adoption. The Liability Provision also does not apply to claims against a director arising out of actions taken in his capacity as an officer, or limit or affect the stockholders' ability to seek and obtain relief under any other law, including the federal securities laws. The Liability Provision limits the remedies available to a stockholder seeking to challenge a Board decision protected by the Liability Provision, including, for example, decisions relating to acquisition proposals or similar transactions. The Liability Provision may, therefore, reduce the likelihood of derivative litigation against directors, and may discourage or deter stockholders or management from bringing a lawsuit against directors for breach of their duty, even though such an action, if successful, might otherwise have benefited the Registrant and its stockholders. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, is permitted to directors and officers of the Registrant pursuant to the above statutory provisions, the Registrant understands that the Securities and Exchange Commission is of the opinion that such indemnification contravenes federal public policy as expressed in said act and therefore is unenforceable. Item 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. Item 8. EXHIBITS. 4.1 Registrant's 1993 Stock Incentive Plan.* 4.2 Form of Incentive Stock Option Agreement. 4.3 Form of Non-Statutory Stock Option Agreement. 5.1 Opinion of Troop Meisinger Steuber & Pasich regarding validity of securities. 23.1 Consent of Troop Meisinger Steuber & Pasich 23.2 Consent of Ernst & Young. _______________ * Incorporated herein by reference from Registrant's Annual Report on Form 10-K for the fiscal year ended December 31, 1994. Item 9. UNDERTAKINGS. (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement; (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (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 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 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. (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, 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 the 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, registrant will, unless in the opinion of the counsel the matter has been settled by controlling precedent, submit to the appropriate jurisdiction the question of 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 the City of Ventura, State of California, on this 28th day of February 1997. BIOPOOL INTERNATIONAL, INC. (Registrant) By: /s/ Michael D. Bick, Ph.D. _____________________________ Michael D. Bick, Ph.D. Chairman, Chief Executive Officer and President 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 TITLE DATE /s/ Michael D. Bick, Ph.D. Chairman, Chief Execu- February 28, 1997 __________________________ tive Officer, Presi- Michael D. Bick, Ph.D. dent and Director /s/ Robert K. Foote Chief Financial Officer February 28, 1997 __________________________ Robert K. Foote /s/ Andrew L. Cerskus, Ph.D. Director February 28, 1997 __________________________ Andrew L. Cerskus, Ph.D. /s/ Lewis J. Kaufman Director February 28, 1997 __________________________ Lewis J. Kaufman /s/ Douglas L. Ayer Director February 28, 1997 __________________________ Douglas L. Ayer EX-4.2 2 EXHIBIT 4.2 Optionee: ________________ Address: ________________ ________________ ________________ BIOPOOL INTERNATIONAL, INC. 1993 STOCK OPTION PLAN INCENTIVE STOCK OPTION CERTIFICATE __________________________________ OPTION AGREEMENT dated as of ____________, between BIOPOOL INTERNATIONAL, INC., a Delaware corporation (the "Company"), and __________________ (the "Optionee"). The Company has adopted the 1993 Stock Option Plan (the "Plan") and desires to grant to the Optionee the Incentive Stock Option provided for herein, all subject to the terms and conditions of the Plan, Capitalized terms used herein and not defined have the same meanings as set forth in the Plan. IT IS AGREED as follows: 1. GRANT OF OPTION. The Company hereby grants to the Optionee as of the date hereof the right and option to purchase (subject to adjustment pursuant to the Plan) an aggregate of ______ of its Shares of Common Stock at an option price per Share of $__________ being at least 100% of the fair market value of the Common Stock as of the date hereof. 2. OPTION PERIOD. The option granted hereby shall expire on the tenth anniversary of the date hereof, subject to earlier termination as provided in the Plan. 3. EXERCISE OF OPTION. A. The options granted hereby shall become exercisable as follows: i) 25 % of the Options granted are exercisable one year following the date hereof. ii) Of the remaining Options, 1/36 of the total are exercisable per month for the 36 months following the first anniversary hereof. B. The Optionee may exercise the option (to the extent it is then exercisable) by delivering to the Company a written notice duly signed by the Optionee stating the number of Shares that the Optionee has elected to purchase and accompanied by payment (in cash or by certified cheque) of an amount equal to the full purchase price for the Shares to be purchased. Within twenty days after receipt by the Company of such notice and payment, the Company shall issue the Shares in the name of the Optionee and deliver the certificate therefor to the Optionee. No Shares shall be issued until full payment therefor has been made, and the Optionee shall have none of the rights of a shareholder in respect of such Shares until they are issued. 4. EMPLOYMENT. Nothing contained in this Option Agreement shall confer upon the Optionee any right to be continued in the employ of the company or shall prevent the Company from terminating his employment at any time, with or without cause. If the Optionee's employment with the Company is terminated for any reason, this option shall be exercisable only as to those shares immediately purchasable by him at the date of termination and, subject to Section 2 hereof, only for the period of 30 days after the termination, 90 days in the case of retirement, or one year in the case of death or disability. 5. NON-TRANSFERABILITY OF OPTION. This option shall not be transferable other than by will or by the laws of descent and distribution, and may be exercised during the Optionee's lifetime only by him. 6. TAX STATUS. It is intended that this option qualify as an incentive stock option within the meaning of Section 422 of the Code. 7. INCORPORATION OF PLAN. The option granted hereby is subject to, and governed by, all the terms and conditions of the Plan, which are hereby incorporated by reference. This Agreement, including the Plan incorporated by reference herein, is the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings. In the case of any conflict between the terms of this agreement and the Plan, the provisions of the Plan shall control. 8. PURCHASE FOR INVESTMENT. As a condition to the exercise in whole or in part of the option hereby granted, each written notice of election shall include a representation by the Optionee that the shares are being purchased for investment and not for distribution or resale. 9. NOTICES. Any notice to be given by the Optionee hereunder shall be sent to the Company at its principal executive offices, and any notice from the Company to the Optionee shall be sent to the Optionee at his address set forth above; all such notices shall be in writing and shall be delivered in person or by registered or certified mail. Either party may change the address to which notices are to be sent by notice in writing given to the other in accordance with the terms hereof. 10. GOVERNING LAW. The parties hereto acknowledge and agree that the option granted hereby is granted in the State of California and any Shares issued upon exercise of the option will be issued in the State of California. This Agreement, as well as the grant of such option and issuance of such Shares, is and shall be governed by and construed in accordance with the laws of the State of California applicable to the agreements made and to be performed entirely within such State. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. BIOPOOL INTERNATIONAL, INC. By: ________________________________________ Michael D. Bick, Chief Executive Officer ________________________________________ Optionee EX-4.3 3 EXHIBIT 4.3 Optionee: _______________ Address: _______________ _______________ _______________ BIOPOOL INTERNATIONAL, INC. 1993 STOCK OPTION PLAN NON-STATUTORY STOCK OPTION CERTIFICATE ______________________________________ OPTION AGREEMENT dated as of _______________, between BIOPOOL INTERNATIONAL, INC., a Delaware corporation (the "Company"), and ______________________ (the "Optionee"). The Company has adopted the 1993 Stock Option Plan (the "Plan") and desires to grant to the Optionee the Non-Statutory Stock Option provided for herein, all subject to the terms and conditions of the Plan. Capitalized terms used herein and not defined have the same meanings as set forth in the Plan. IT IS AGREED as follows: 1. GRANT OF OPTION. The Company hereby grants to the Optionee as of the date hereof the right and option to purchase (subject to adjustment pursuant to the Plan) an aggregate of ______________ of its Shares of Common Stock at an option price per Share of $_________ being at least 100% of the fair market value of the Common Stock as of the date hereof. 2. OPTION PERIOD. The option granted hereby shall expire on the tenth anniversary of the date hereof, subject to earlier termination as provided in the Plan. 3. EXERCISE OF OPTION. A. The options granted hereby shall become exercisable one year following the date hereof. B. The Optionee may exercise the option (to the extent it is then exercisable) by delivering to the Company a written notice duly signed by the Optionee stating the number of Shares that the Optionee has elected to purchase and accompanied by payment (in cash or by certified cheque) of an amount equal to the full purchase price for the Shares to be purchased. Within twenty days after receipt by the Company of such notice and payment, the Company shall issue the Shares in the name of the Optionee and deliver the certificate therefor to the Optionee. No Shares shall be issued until full payment therefor has been made, and the Optionee shall have none of the rights of a shareholder in respect of such Shares until they are issued. 4. NON-TRANSFERABILITY OF OPTION. This option shall not be transferable other than by will or by the laws of descent and distribution, and may be exercised during the Optionee's lifetime only by him. 5. TAX STATUS. The option is not intended to qualify as an incentive stock option within the meaning of Section 422A of the Code. 6. INCORPORATION OF PLAN. The option granted hereby is subject to, and governed by, all the terms and conditions of the Plan, which are hereby incorporated by reference. This Agreement including the Plan incorporated by reference herein, is the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings. In the case of any conflict between the terms of this agreement and the Plan, the provisions of the Plan shall control. 7. PURCHASE FOR INVESTMENT. As a condition to the exercise in whole or in part of the option hereby granted, each written notice of election shall include a representation by the Optionee that the shares are being purchased for investment and not for distribution or resale. 8. NOTICES. Any notice to be given by the Optionee hereunder shall be sent to the Company at its principal executive offices, and any notice from the Company to the Optionee shall be sent to the Optionee at his address set forth above; all such notices shell be in writing and shall be delivered in person or by registered or certified mail. Either party may change the address to which notices are to be sent by notice in writing given to the other in accordance with the terms hereof. 9. GOVERNING LAW. The parties hereto acknowledge and agree that the option granted hereby is granted in the State of California and any Shares issued upon exercise of the option will be issued in the State of California. This Agreement, as well as the grant of such option and issuance of such Shares, is and shall be governed by and construed in accordance with the laws of the State of California applicable to the agreements made and to be performed entirely within such State. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. BIOPOOL INTERNATIONAL, INC. By: ________________________________________ Michael D. Bick, Chief Executive Officer ________________________________________ Optionee EX-5.1 4 EXHIBIT 5.1 TROOP MEISINGER STEUBER & PASICH, LLP Lawyers February 28, 1997 Biopool International, Inc. 6025 Nicolle Street, Suite A Ventura, California 93003 Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement"), to which this letter is attached as Exhibit 5.1, filed by Biopool International, Inc., a Delaware corporation (the "Company") in order to register under the Securities Act of 1933, as amended, up to 1,650,000 shares of Common Stock of the Company (the "Shares") to be issued pursuant to the Company's 1993 Stock Incentive Plan (the "Plan"). Subject to compliance with applicable state securities and "Blue Sky" laws, we are of the opinion that the Shares have been duly authorized and upon issuance and sale in conformity with and pursuant to the Plan, and receipt of the purchase price therefor as specified in the Registration Statement, the Shares will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an Exhibit to the Registration Statement and to the use of our name in the Prospectus constituting a part thereof. Respectfully submitted, TROOP MEISINGER STEUBER & PASICH EX-23.1 5 EXHIBIT 23.1 TROOP MEISINGER STEUBER & PASICH, LLP Lawyers February 28, 1997 Biopool International, Inc. 6025 Nicolle Street, Suite A Ventura, California 93003 Gentlemen: At your request, we have examined the Registration Statement on Form S-8 (the "Registration Statement"), to which this letter is attached as Exhibit 5.1, filed by Biopool International, Inc., a Delaware corporation (the "Company") in order to register under the Securities Act of 1933, as amended, up to 1,650,000 shares of Common Stock of the Company (the "Shares") to be issued pursuant to the Company's 1993 Stock Incentive Plan (the "Plan"). Subject to compliance with applicable state securities and "Blue Sky" laws, we are of the opinion that the Shares have been duly authorized and upon issuance and sale in conformity with and pursuant to the Plan, and receipt of the purchase price therefor as specified in the Registration Statement, the Shares will be legally and validly issued, fully paid and non-assessable. We consent to the use of this opinion as an Exhibit to the Registration Statement and to the use of our name in the Prospectus constituting a part thereof. Respectfully submitted, TROOP MEISINGER STEUBER & PASICH EX-23.2 6 EXHIBIT 23.2 Consent of Independent Auditors We consent to the reference to our firm in the Registration Statement (Form S-8) pertaining to the Biopool International, Inc. 1993 Stock Incentive Plan and the incorporation by reference therein of our report dated March 6, 1996, with respect to the consolidated financial statements and schedules of Biopool International, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. Woodland Hills, California ERNST & YOUNG February 28, 1997 -----END PRIVACY-ENHANCED MESSAGE-----