-----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, A2O5keD9oPjsA6XCzBMotQYiGfpkHffs0LV4Oo6O5KwtT0TfefSB8hzh4A5ma0ys X1yKr3vRs34e+xL6Oh7AKg== 0000891618-96-001116.txt : 19960705 0000891618-96-001116.hdr.sgml : 19960705 ACCESSION NUMBER: 0000891618-96-001116 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19960703 EFFECTIVENESS DATE: 19960722 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ABAXIS INC CENTRAL INDEX KEY: 0000881890 STANDARD INDUSTRIAL CLASSIFICATION: ELECTROMEDICAL & ELECTROTHERAPEUTIC APPARATUS [3845] IRS NUMBER: 770213001 STATE OF INCORPORATION: CA FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-07541 FILM NUMBER: 96590926 BUSINESS ADDRESS: STREET 1: 1320 CHESAPEAKE TERRACE CITY: SUNNYVALE STATE: CA ZIP: 94089 BUSINESS PHONE: 4087340200 MAIL ADDRESS: STREET 2: 1320 CHESAPEAKE TERRACE CITY: SUNNYVALE STATE: CA ZIP: 94089 S-8 1 FORM S-8 1 Registration No. __________ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ABAXIS, INC. (Exact name of registrant as specified in its charter) California 77-0213001 (State or other jurisdiction (I.R.S. employer identification no.) of incorporation or organization) 1320 Chesapeake Terrace Sunnyvale, CA 94089 (Address of principal executive offices) (Zip code) ABAXIS, INC. 1989 STOCK OPTION PLAN (Full title of the plan) Ting W. Lu Vice President of Finance, Chief Financial Officer and Secretary Abaxis, Inc. 1320 Chesapeake Terrace Sunnyvale, CA 94089 (Name and address of agent for service) Telephone number, including area code, of agent for service: 408/734-0200 This registration statement, including all exhibits and attachments, contains 13 pages. The exhibit index may be found on page 9 of the consecutively numbered pages of the registration statement. This registration statement shall hereafter become effective in accordance with Rule 462 promulgated under the Securities Act of 1933, as amended. 1 2
- ------------------------------------------------------------------------------------------- CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------- Proposed Proposed Title of maximum maximum securities Amount offering aggregate Amount of to be to be price per offering registration registered registered share(1) price(1) fee - ------------------------------------------------------------------------------------------- No Par Value Common Stock 486,000 $4.50 $2,187,000.00 $754.14
- -------- (1) Estimated pursuant to Rule 457 solely for purposes of calculating the registration fee. The price is based upon the average of the high and low prices of the Common Stock on June 28, 1996 as reported on the National Association of Securities Dealers Automated Quotations system. 2 3 PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference Abaxis, Inc. (the "Company") hereby incorporates by reference in this registration statement the following documents: (a) The Company's latest annual report on Form 10-K filed pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), containing audited financial statements for the Company's latest fiscal year. (b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the registrant document referred to in (a) above. (c) The description of the Company's Common Stock contained in the Company's Registration Statement on Form 8-A filed under the Exchange Act, including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Item 4. Description of Securities The class of securities to be offered is registered under Section 12 of the Exchange Act. Item 5. Interests of Named Experts and Counsel Not applicable. 3 4 Item 6. Indemnification of Directors and Officers The Company's Restated Articles of Incorporation provide that the liability of the directors for monetary damages shall be eliminated to the fullest extent permissible under California law. Pursuant to California law, the Company's directors shall not be liable for monetary damages for breach of the directors' fiduciary duty of care to the Company and its shareholders. However, this provision does not eliminate the duty of care, and in appropriate circumstances, equitable remedies such as injunctive or other forms of non-monetary relief will remain available under California law. In addition, each director will continue to be subject to liability for (i) acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) acts or omissions that a director believes to be contrary to the best interests of the Company or its shareholders or that involve the absence of good faith on the part of the director, (iii) any transaction from which a director derived an improper personal benefit, (iv) acts or omissions that show a reckless disregard for the director's duty to the Company or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director's duties, of a risk of serious injury to the Company or its shareholders, (v) acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director's duty to the Company or its shareholders, (vi) any transaction that constitutes an illegal distribution or dividend under California law, and (vii) any transaction involving an unlawful conflict of interest between the director and the Company under California law. The provision also does not affect a director's responsibilities under any other law, such as the federal securities laws or state or federal environmental laws. In addition, the Company's Restated Articles of Incorporation provide that the Company is authorized to provide indemnification of agents for breach of duty to the Company and its shareholders through bylaw provisions or through agreements with the agents, or through shareholder resolutions, or otherwise, in excess of the indemnification otherwise permitted by California law, subject to the limits on such excess indemnification set forth in California law. The Company's Bylaws provide that the Company will indemnify its directors and executive officers and may indemnify its other officers, employees and other agents to the fullest extent permitted by California law. Such indemnification is intended to provide the full flexibility available under California law and may, under certain circumstances, include indemnification for negligence, gross negligence and certain types of recklessness. Under California law and the Company's Bylaws, the Company will be permitted to indemnify its directors, executive officers, officers, employees and other agents, within the limits established by law and public policy, pursuant to an express contract, bylaw provision, shareholder vote or otherwise, any or all of which could provide indemnification rights broader than those expressly available under California law. 4 5 The Company is also empowered under its Bylaws to enter into indemnification contracts with its directors and officers and to purchase insurance on behalf of any person whom it is required or permitted to indemnify. The Company has entered into agreements with its directors and certain of its executive officers that require the Company to indemnify such persons against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred (including expenses of a derivative action) in connection with any proceeding, whether actual or threatened, to which any such person may be made a party by reason of the fact that such person is or was a director or an executive officer of the Company or any of its affiliated enterprises, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful. The indemnification agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. Section 317 of the California Corporations Code makes provisions for the indemnification of officers, directors and other corporate agents in terms sufficiently broad to indemnify such persons, under certain circumstances, for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933, as amended (the "Securities Act"). Section 317 also provides that the indemnification provided by this section is not exclusive to the extent additional rights are authorized in a corporation's articles of incorporation. Item 7. Exemption From Registration Claimed Inapplicable. Item 8. Exhibits See Exhibit Index. Item 9. Undertakings (a) Rule 415 Offering 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; 5 6 (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; provided, however, that paragraphs (a)(1)(i) and (a)(l)(ii) do not apply if the registration statement is on Form S-3 or Form 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 Exchange Act that are incorporated by reference in the 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) Filing incorporating subsequent Exchange Act documents by reference 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 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. (h) Request for acceleration of effective date or filing of registration statement on Form S-8 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 6 7 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. SIGNATURE Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on July 2, 1996. ABAXIS, INC. By: /s/ Ting W. Lu -------------------------------------- Ting W. Lu, Vice President of Finance, Chief Financial Officer and Secretary 7 8 POWER OF ATTORNEY The officers and directors of Abaxis, Inc. whose signatures appear below, hereby constitute and appoint Gary H. Stroy and Ting W. Lu, and each of them, their true and lawful attorneys and agents, with full power of substitution, with power to act alone, to sign and execute on behalf of the undersigned any amendment or amendments to this registration statement on Form S-8, and do hereby ratify and confirm all that each of said attorney and agent, or their or her or his substitutes, shall do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on July 2, 1996.
Signature Title - ------------------------------------------------------------------------------------------------- /s/ Gary H. Stroy - ---------------------------------------- Gary H. Stroy Chairman of the Board of Directors /s/ Clinton H. Severson - ---------------------------------------- Clinton H. Severson President, Chief Executive Officer and Director (Principal Executive Officer) /s/ Ting W. Lu - ---------------------------------------- Ting W. Lu Vice President of Finance, Chief Financial Officer and Secretary (Principal Financial and Accounting Officer) /s/ Richard Bastiani, Ph.D. - ---------------------------------------- Richard Bastiani, Ph.D. Director /s/ Robert Kunze - ---------------------------------------- Robert Kunze Director /s/ Prithipal Singh, Ph.D. - ---------------------------------------- Prithipal Singh, Ph.D. Director /s/ Ernest S. Tucker, III, M.D. - ---------------------------------------- Ernest S. Tucker, III, M.D. Director
8 9 EXHIBIT INDEX Sequentially Numbered Page ------------- 4.1 Restated Articles of Incorporation of the -- Company dated January 30, 1992, is incorporated by reference to Exhibit 3.1 to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission (No. 33-83852, filed September 19, 1994) 4.2 Bylaws of the Company is incorporated by reference to -- Exhibit 3.2 to the Company's Registration Statement on Form S-1 filed with the Securities and Exchange Commission (No. 33-83852, filed September 19, 1994) 5 Opinion re legality 10 23.1 Consent of Counsel (included in Exhibit 5) -- 23.2 Consent of Deloitte & Touche LLP 12 23.3 Consent of Ernst & Young LLP 13 24 Power of Attorney (included in signature pages -- to this registration statement) 9 EX-5 2 OPINION RE LEGALITY 1 [GRAY CARY WARE FREIDENRICH LETTERHEAD] ATTORNEYS AT LAW 400 HAMILTON AVENUE PALO ALTO, CA 94301-1825 TEL (415) 328-6561 FAX (415) 327-3699 EXHIBIT 5 OUR FILE NO. 1010441-900301 July 2, 1996 Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 RE: ABAXIS, INC. REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES ISSUABLE UNDER THE 1989 STOCK OPTION PLAN Ladies and Gentlemen: As legal counsel for Abaxis, Inc., a California corporation (the "Company"), we are rendering this opinion in connection with the registration under the Securities Act of 1933, as amended, of up to 486,000 shares of the Common Stock, without par value, of the Company which may be issued pursuant to the exercise of options granted under the Abaxis, Inc. 1989 Stock Option Plan (the "Plan"). We have examined all instruments, documents and records which we deemed relevant and necessary for the basis of our opinion hereinafter expressed. In such examination, we have assumed the genuineness of all signatures and the authenticity of all documents submitted to us as originals and the conformity to the originals of all documents submitted to us as copies. We are admitted to practice only in the State of California and we express no opinion concerning any law other than the law of the State of California and the federal law of the United States. 10 2 Securities and Exchange Commission Page 2 Based on such examination, we are of the opinion that the 486,000 shares of Common Stock which may be issued upon exercise of options granted under the Plan are duly authorized shares of the Company's Common Stock, and, when issued against payment of the purchase price therefor in accordance with the provisions of the Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and the use of our name wherever it appears in said Registration Statement. Respectfully submitted, /s/ Gray Cary Ware & Freidenrich GRAY CARY WARE & FREIDENRICH A Professional Corporation 11 EX-23.2 3 CONSENT OF DELOITTE & TOUCHE LLP 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Abaxis, Inc. on Form S-8 of our report dated April 23, 1996, appearing in the Annual Report on Form 10-K of Abaxis, Inc. for the year ended March 31, 1996. /s/ Deloitte & Touche LLP DELOITTE & TOUCHE LLP San Jose, California June 26, 1996 12 EX-23.3 4 CONSENT OF ERNST & YOUNG LLP 1 Exhibit 23.3 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1989 Stock Option Plan of Abaxis, Inc. of our report dated April 21, 1995, with respect to the financial statements of Abaxis, Inc. included in its Annual Report (Form 10-K) for the year ended March 31, 1996 filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP San Jose, California June 26, 1996 13 -----END PRIVACY-ENHANCED MESSAGE-----