-----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, SCx5RxUJjgcGPRXhW49sebJLT+1YsmsQgKgwnBWwqAYyYRPnET7bt5bgxoySJ9gJ cfY8Z5+98RD+S8Hv61ndLg== 0001047469-97-008103.txt : 19971218 0001047469-97-008103.hdr.sgml : 19971218 ACCESSION NUMBER: 0001047469-97-008103 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971217 EFFECTIVENESS DATE: 19971217 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: METRA BIOSYSTEMS INC CENTRAL INDEX KEY: 0000888999 STANDARD INDUSTRIAL CLASSIFICATION: IN VITRO & IN VIVO DIAGNOSTIC SUBSTANCES [2835] IRS NUMBER: 330408436 STATE OF INCORPORATION: CA FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42497 FILM NUMBER: 97739842 BUSINESS ADDRESS: STREET 1: 265 N WHISMAN RD CITY: MOUNTAIN VIEW STATE: CA ZIP: 94043 BUSINESS PHONE: 4159039100 MAIL ADDRESS: STREET 1: 265 NORTH WHISMAN RD CITY: MOUNTAIN VIEW STATE: CA ZIP: 940433911 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 17, 1997 Registration No. 333-__________ - ------------------------------------------------------------------------------ - ------------------------------------------------------------------------------ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ________________ METRA BIOSYSTEMS, INC. (Exact name of Registrant as specified in its charter) CALIFORNIA 33-0408436 (State of Incorporation) (I.R.S. Employer Identification No.) 265 NORTH WHISMAN ROAD MOUNTAIN VIEW, CA 94043-3911 (Address of principal executive offices) _______________________ 1995 STOCK OPTION PLAN (Full title of the Plan) _______________________ GEORGE W. DUNBAR, JR. PRESIDENT AND CHIEF EXECUTIVE OFFICER 265 NORTH WHISMAN ROAD MOUNTAIN VIEW, CA 94043-3911 (650) 903-9100 (Name, address and telephone number, including area code, of agent for service) _______________________ Copy to: Mark B. Weeks Venture Law Group 2800 Sand Hill Road Menlo Park, California 94025 (650) 854-4488 Page 1 of 11 Pages Exhibit Index on Page 8 (Calculation of Registration Fee on following page) - ------------------------------------------------------------------------------ CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------
Proposed Proposed Maximum Maximum Maximum Amount of Amount to be Offering Price Aggregate Registration Title of Securities to be Registered Registered Per Share Offering Price Fee - ------------------------------------------------------------------------------------------------------------- 1995 STOCK OPTION PLAN Common Stock, $0.01 par value ........... 540,115 Shares (1) $3.8125 (2) $2,059,188.40 (2) $607.46 (2) Common Stock, $0.01 par value ........... 259,885 Shares (1) $4.90 (3) $1,273,436.50 (3) $375.66 (3) TOTAL 800,000 Shares $3,332,624.90 $983.12 - -------------------------------------------------------------------------------------------------------------
_______________________ (1) Registrant is registering an aggregate of 800,000 shares under its 1995 Stock Option Plan pursuant to this Registration Statement. This aggregate number represents increases in the shares reserved for issuance under Registrant's 1995 Stock Option Plan, 500,000 shares of which were approved by Registrant's shareholders at a meeting held on December 16, 1996 and 300,000 shares of which were approved by Registrant's shareholders at a meeting held on December 8, 1997. Of the 800,000 shares covered by this increase, as of December 8, 1997, 259,885 shares are subject to outstanding options. An additional 1,000,000 shares were previously registered for issuance under the 1995 Stock Option Plan pursuant to a previous Form S-8 filed by Registrant with the Securities and Exchange Commission (the "COMMISSION") on November 13, 1995 (Registration No. 33-99200). (2) Computed in accordance with Rule 457(h) under the Securities Act of 1933, as amended (the "SECURITIES ACT") solely for the purpose of calculating the registration fee. The computation with respect to unissued options is based upon the average high and low sale prices of the Common Stock as reported on the Nasdaq National Market on December 15, 1997. (3) Computed in accordance with Rule 457(h) under the Securities Act solely for the purpose of calculating the registration fee. The computation with respect to issued options is based on the weighted average per share exercise price of outstanding options under the referenced Plan, the shares issuable under which are registered hereby. -2- PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents filed by Registrant with the Commission are incorporated by reference: 1. Registrant's Annual Report on Form 10-K for the year ended June 30, 1997 (File No. 0-26234). 2. Registrant's definitive Proxy Statement dated November 10, 1997, filed in connection with the Registrant's December 8, 1997 Annual Meeting of Shareholders. 3. Registrant's Quarterly Report on Form 10-Q for the quarter ended September 30, 1997, (File No. 0-26234). 4. The description of Registrant's Common Stock set forth in Registrant's Registration Statement on Form 8-A, filed with the Commission on June 13, 1995 (File No. 0-26234). 5. The description of Registrant's Preferred Share Purchase Rights set forth in Registrant's Registration Statement on Form 8-A/A, filed with the Commission on January 27, 1997 (File No. 0-26234). 6. Registrant's Registration Statement on Form S-8, filed on November 13, 1995 (File No. 33-99200). All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") after the date hereof, and prior to the filing of a post-effective amendment which indicates that all securities offered hereunder have been sold or which deregisters all securities then remaining unsold under this registration statement, shall be deemed to be incorporated by reference herein and to be part hereof from the date of filing of such document. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in any other subsequently filed document which also is incorporated by reference herein) modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed to constitute a part hereof, except as so modified or superseded. ITEM 4. DESCRIPTION OF SECURITIES Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Company's Articles of Incorporation limit the liability of directors for monetary damages arising from breach of their fiduciary duty to the maximum extent permitted by the California Corporations Code ("California Law"). Such limitation of liability does not affect the availability of equitable remedies such as injunctive relief or recession. The limitation on monetary liability also does not apply to liabilities arising under the federal securities laws. The Company's Bylaws provide that the Company shall indemnify its directors and officers to the fullest extent permitted by California law, including circumstances in which indemnification is otherwise discretionary under California law. The Company has entered into indemnification agreements with its directors containing provision which are in some respects broader than the specific indemnification provisions contained in the -3- California Corporations Code. The indemnification agreements may require the Company, among other things, to indemnify its directors against certain liabilities that may arise by reason of their status or service as directors (other than liabilities arising from willful misconduct of a culpable nature), to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified, and to obtain director's insurance if available on reasonable terms. The Company believes that the limitation provision in its Articles of Incorporation and the indemnification provisions in its Articles of Incorporation, Bylaws and indemnification agreements will facilitate the Company's ability to continue to attract and retain qualified individuals to serve as directors of the Company. It is the opinion of the Commission that indemnification provisions such as those contained in the Bylaws and these agreements have no effect on a director's or officer's liability under the federal securities laws. The Registrant has also obtained directors and officers' liability insurance covering, subject to certain exceptions, actions taken by the Registrant's directors and officers in their capacities as such. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS Exhibit Number ------- 4.1* 1995 Stock Option Plan, and form of agreement thereunder 5.1 Opinion of Venture Law Group, a Professional Corporation (see p. 9). 23.1 Consent of Venture Law Group, a Professional Corporation (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP, Independent Auditors (see p. 10). 23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors (see p. 11). 24.1 Powers of Attorney (see p. 7). _______________ * Incorporated by reference from Registrant's Registration Statement on Form S-1, as amended, filed with the Commission on June 29, 1995. ITEM 9. UNDERTAKINGS 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 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, 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. -4- (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 this offering. (4) That, for purposes of determining any liability under the Securities Act, each filing of Registrant's annual report pursuant to Section 13(a) or 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Registrant pursuant to the foregoing provisions, or otherwise, Registrant has been advised that in the opinion of the SEC 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 Registrant of expenses incurred or paid by a director, officer or controlling person of 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 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. [Signature Pages Follow] -5- SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Registrant, Metra Biosystems, Inc., a corporation organized and existing under the laws of the State of California, 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 Mountain View, State of California, on December 8, 1997. METRA BIOSYSTEMS, INC. By: /s/ GEORGE W. DUNBAR, JR. ------------------------------ George W. Dunbar, Jr. President and Chief Executive Officer -6- POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints George W. Dunbar, Jr. and Kurt E. Amundson, jointly and severally, his attorneys-in-fact and agents, each with the power of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign any amendments to this Registration Statement on Form S-8, and to file such amendments, together with exhibits and other documents in connection therewith, with the Securities and Exchange Commission, granting to each attorney-in-fact and agent, 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 as he might or could do in person, and ratifying and confirming all that the attorneys-in-fact and agents, or his substitute or substitutes, may do or cause to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature Title Date --------- ----- ---- /s/ George W. Dunbar, Jr. - ---------------------------- President, Chief Executive Officer December 15, 1997 George W. Dunbar, Jr. /s/ Kurt E. Amundson Vice President and Chief Financial - ---------------------------- Officer (Principal Financial and December 15, 1997 Kurt E. Amundson Accounting Officer) /s/ Claude D. Arnaud, M.D. - ---------------------------- Director December 15, 1997 Claude D. Arnaud, M.D. /s/ John L. Castello - ---------------------------- Director December 15, 1997 John L. Castello /s/ Mary Lake Polan, M.D., Ph.D. - ---------------------------- Director December 15, 1997 Mary Lake Polan, M.D., Ph.D. /s/ Craig C. Taylor - ---------------------------- Director December 15, 1997 Craig C. Taylor
-7- INDEX TO EXHIBITS Exhibit Page Number No. - ------- ---- 4.1* 1995 Stock Option Plan, and form of agreement thereunder -- 5.1 Opinion of Venture Law Group, a Professional Corporation. 9 23.1 Consent of Venture Law Group, a Professional Corporation 9 (included in Exhibit 5.1). 23.2 Consent of Ernst & Young LLP, Independent Auditors. 10 23.3 Consent of KPMG Peat Marwick LLP, Independent Auditors. 11 24.1 Powers of Attorney (see page 7). 7 _______________ * Incorporated by reference from Registrant's Registration Statement on Form S-1, as amended, filed with the Commission on June 29, 1995. EX-5.1 2 EXHIBIT 5.1 EXHIBIT 5.1 OPINION OF COUNSEL December 17, 1997 Metra Biosystems, Inc. 265 N. Whisman Road Mountain View, CA 94043-3911 REGISTRATION STATEMENT ON FORM S-8 ---------------------------------- Ladies and Gentlemen: We have examined the Registration Statement on Form S-8 (the "REGISTRATION STATEMENT") to be filed by Metra Biosystems, Inc. ("METRA") with the Securities and Exchange Commission (the "COMMISSION") on or about December 17, 1997 in connection with the registration under the Securities Act of 1933, as amended, of a total of 800,000 additional shares of Metra Common Stock reserved for issuance or issued under Metra's 1995 Stock Option Plan ("METRA PLAN"). As Metra's legal counsel in connection with this transaction, we have examined the proceedings taken and are familiar with the proceedings proposed to be taken by Metra in connection with the sale and issuance of the foregoing shares under the Metra Plan (collectively, the "SHARES"). It is our opinion that upon conclusion of the proceedings being taken or contemplated by us, as Metra's counsel, to be taken prior to the issuance of the Shares, and upon completion of the proceedings being taken in order to permit such transactions to be carried out in accordance with the securities laws of the various states where required, the Shares when issued and sold in the manner described in the Registration Statement 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 further consent to the use of our name wherever appearing in the Registration Statement, including the Prospectus constituting a part thereof, and in any amendment thereto. Very truly yours, VENTURE LAW GROUP A Professional Corporation /s/ VENTURE LAW GROUP EX-23.2 3 EXHIBIT 23.2 EXHIBIT 23.2 CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 1995 Stock Option Plan of Metra Biosystems, Inc. of our report dated July 16, 1997 with respect to the consolidated financial statements and schedule of Metra Biosystems, Inc. for the year ended June 30, 1997 included in its Annual Report (Form 10-K), filed with the Securities and Exchange Commission. ERNST & YOUNG LLP Palo Alto, California December 9, 1997 EX-23.3 4 EXHIBIT 23.3 EXHIBIT 23.3 CONSENT OF KPMG PEAT MARWICK LLP, INDEPENDENT AUDITORS We consent to the incorporation by reference in the Registration Statement on Form S-8 of our report dated July 18, 1996, with respect to the consolidated balance sheet of Metra Biosystems, Inc. and subsidiaries as of June 30, 1996 and the related consolidated statements of operations, shareholders' equity and cash flows for each of the years in the two-year period ended June 30, 1996, which report appears in the June 30, 1997 annual report on Form 10-K of Metra Biosystems, Inc. KPMG Peat Marwick LLP San Francisco, California December 15, 1997 -----END PRIVACY-ENHANCED MESSAGE-----