-----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, J3QlDbf4DlXAIlRd+LqldiwHrbWMzkE44nUgkCZTcLo4u2ZJoR/LiAv9EbiPWJFU 2o0Qscv/8hhG+/X81JSIEw== 0000950137-99-004192.txt : 19991117 0000950137-99-004192.hdr.sgml : 19991117 ACCESSION NUMBER: 0000950137-99-004192 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19991116 EFFECTIVENESS DATE: 19991116 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERICAN BIO MEDICA CORP CENTRAL INDEX KEY: 0000896747 STANDARD INDUSTRIAL CLASSIFICATION: MEASURING & CONTROLLING DEVICES, NEC [3829] IRS NUMBER: 141702188 STATE OF INCORPORATION: NY FISCAL YEAR END: 0430 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-91025 FILM NUMBER: 99758533 BUSINESS ADDRESS: STREET 1: 122 SMITH ROAD CITY: KINDERHOOK STATE: NY ZIP: 12106 BUSINESS PHONE: 8002271243 MAIL ADDRESS: STREET 1: 122 SMITH ROAD CITY: KINDERHOOK STATE: NY ZIP: 12106 S-8 1 FORM S-8 1 As filed with the Securities and Exchange Commission on November 15,1999 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------------------------- AMERICAN BIO MEDICA CORPORATION (Exact name of registrant as specified in its charter) New York 14-1702188 ---------------------------- ---------------------------- (State or other jurisdiction (IRS employer identification of incorporation or organization) number) 122 Smith Road, Kinderhook, NY 12106 -------------------------------------------- --------- (Address of principal executive offices) (Zip code) FISCAL 1998 NON-STATUTORY STOCK OPTION PLAN FISCAL 2000 NON-STATUTORY STOCK OPTION PLAN ------------------------------------------ (Full title of plans) Stan Cipkowski President/Chief Executive Officer/Chairman of the Board c/o American Bio Medica Corporation 122 Smith Road, Kinderhook, NY 12106 800-227-1243 ------------ (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE =============================== - -------------------------------------------------------------------------------- Proposed Proposed Maximum Title of each class Amount maximum aggregate Amount of of securities to be offering price offering registration to be registered registered per unit (2) price (1) fee - -------------------------------------------------------------------------------- Common Shares(2) 1,000,000 N/A $2,919,728 $ 811.68 Common Shares(3) 1,000,000 N/A $1,610,000 $ 447.58 --------- Total registration fee $1,259.26 (1) Estimated solely for the purpose of calculating the registration fee. (2) These Common Shares are offered under the Company's Fiscal 1998 Non-Statutory Stock Option Plan. Pursuant to Rule 457(h)( 1), the filing fee for the 942,250 Common Shares subject to options that have been granted is calculated based upon the weighted average of the various strike prices of such shares, which is $3.00. Pursuant to Rule 457(h)( 1), the filing fee for the 57,750 Common Shares subject to options that have not yet been granted is calculated based upon the average of the bid and asked prices per Common Share on November 1, 1999, as reported on the Nasdaq SmallCap Market, which was $1.61 per share. (3) These Common Shares are offered under the Company's Fiscal 2000 Non-Statutory Stock Option Plan. Pursuant to Rule 457(h)( 1), the filing fee for the 1,000,000 Common Shares subject to options that have not yet been granted is calculated based upon the average of the bid and asked prices per Common Share on November 1, 1999, which was $1.61 per share. 2 PART I INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS In accordance with Rule 428 under the Securities Act of 1933, as amended, and the Note to Part I of Form S-8, the information required by Part I to be contained in the Section 10(a) prospectus has been omitted from this registration statement. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed by American Bio Medica Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") are incorporated by reference in this Registration Statement: (1) The Company's Annual Report on Form 10-KSB for the year ended April 30, 1999; (2) The Company's Quarterly Report on Form 10-QSB for the quarter ended July 31, 1999; (3) The Company's current report on Form 8-K filed with the Commission on September 16, 1999; and (4) The Company's Registration Statement on Form 8-A registering the Common Shares under Section 12(g) of the Securities Exchange Act of 1934 (the "Exchange Act"). 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 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. Not applicable. Item 5. Interests of Named Experts and Counsel. Not applicable. Item 6. Indemnification of Directors and Officers. Article 9 of this Company's Certificate of Incorporation permits the indemnification of officers and directors under certain circumstances to the full extent that such indemnification may be permitted by law. Such rights of indemnification are in addition to, and not in limitation of, any rights to indemnification to which any officer or director of the Company is entitled to under the Business Corporation Law of the State of New 2 3 York which provides for indemnification by a corporation of its officers and directors under certain circumstances as stated in the Business Corporation Law and subject to specified limitations set forth in the Business Corporation Law. Item 7. Exemption from Registration Claimed. Not applicable. Item 8. Exhibits. See Exhibit Index on Page E-1. Item 9. UNDERTAKINGS 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 Securities Act of 1933 (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. The undersigned hereby undertakes: (a) 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; (ii) to reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement or any material change to such information in this Registration Statement; Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the information required to be included in a post effective amendment by these paragraphs is contained in periodic reports filed by the Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated by reference in this 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 3 4 the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; (c) 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; (d) That,for purposes of determining any liability under the Securities Act, each filing of the Company's annual report pursuant to Section 13(a) or 15(d) of the Exchange Act(and, where applicable, each filing of an employee benefits 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 herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. 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 Kinderhook, State of New York on November 11, 1999. AMERICAN BIO MEDICA CORPORATION (Registrant) By: /s/Stan Cipkowski ------------------ Stan Cipkowski, President, Chief Executive Officer, & Chairman of the Board of Directors 4 5 POWER OF ATTORNEY Each of the undersigned officers and directors of American Bio Medica Corporation whose signature appears below hereby appoints Stan Cipkowski and John F. Murray, and each of them, as true and lawful attorney-in-fact for the undersigned with full power of substitution, to execute in his name and on his behalf in each capacity stated below, any and all amendments (including post-effective amendments) to this Registration Statement as the attorney-in-fact shall deem appropriate, and to cause to be filed any such amendment (including exhibits thereto and other documents in connection therewith) to this Registration Statement with the Securities and Exchange Commission, as fully and to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact, or any of them, may lawfully do or cause to be done by virtue herewith. Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on November 11, 1999: Signature Title --------- ----- /s/Stan Cipkowski President, Chief Executive Officer, - --------------------- & Chairman of the Board of Directors Stan Cipkowski (Principal Executive Officer) /s/Edmund Jaskiewicz - --------------------- Director & Secretary Edmund Jaskiewicz /s/Jay Bendis Director & Vice President Sales & - --------------------- Marketing Jay Bendis /s/John F. Murray Director,Treasurer, Chief Financial Officer - --------------------- (Principal Financial Officer) John F. Murray - --------------------- Gerald Moore Director - --------------------- Karen Russo Director 5 6 PAGE E-1 INDEX TO EXHIBITS Exhibit Description ------- ----------- 3.07 Fifth Amendment to Certificate of Incorporation* 5.01 Opinion and Consent of Hopkins & Sutter 10.01 Fiscal 1998 Non-Statutory Stock Option Plan (filed as part of the Company's Proxy Statement for its Fiscal 1998 Annual Meeting and incorporated herein by reference) 10.02 Fiscal 2000 Non-Statutory Stock Option Plan (filed as part of the Company's Proxy Statement for its Fiscal 2000 Annual Meeting and incorporated herein by reference) 23.01 Consent of Richard A. Eisner & Company, LLP 23.02 Consent of Hopkins & Sutter(contained in Exhibit 5.01) - ----------------------------- * Previously filed as an exhibit to Registration Statement on Form SB-2 filed on May 20, 1998 and incorporated herein by reference EX-5.01 2 OPINION AND CONSENT OF HOPKINS & SUTTER 1 Exhibit 5.01 H O P K I N S & S U T T E R (A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS) THREE FIRST NATIONAL PLAZA CHICAGO, IL 60602-4205 312-558-5600 FAX (312) 558-6538 (312) 558-6676 INTERNET HTTP://WWW.HOPSUT.COM WASHINGTON, D.C. OFFICE 888 SIXTEENTH STREET, N.W. 20006-4163 DETROIT OFFICE 2800 LIVERNOIS SUITE 220 TROY, MI 43083-1220 November 15, 1999 American Bio Medica Corporation 122 Smith Road Kinderhook, New York 12106 Re: Form S-8 Registration Statement Ladies and Gentlemen: We have acted as counsel for American Bio Medica Corporation (the "Company") in connection with the preparation of the Registration Statement on Form S-8, relating to the sale by the Company from time to time of up to (i) 1,000,000 Common Shares, par value $.01 per share (the "Shares"), issuable upon the exercise of stock options granted or to be granted pursuant to the Company's Fiscal 1998 Non-Statutory Stock Option Plan (the "1998 Stock Option Plan"); and (ii) 1,000,000 Shares issuable upon the exercise of stock options granted or to be granted pursuant to the Company's Fiscal 2000 Non-Statutory Stock Option Plan (the "2000 Stock Option Plan"). We have examined such documents and have reviewed such questions of law as we have considered necessary and appropriate for the purposes of the opinion set forth below. In rendering our opinion set forth below, we have assumed the authenticity of all documents submitted to us as originals, the genuineness of all signatures and the conformity to authentic originals of all documents submitted to us as copies. We have also assumed the legal capacity for all purposes relevant hereto of all natural persons and with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver, and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding, and enforceable obligations of such parties. As to questions of fact material to our opinions, we have relied upon certificates of officers of the Company and of public officials. 2 Based on the foregoing, we are of the opinion that such Shares have been duly authorized and, upon issuance, delivery, and payment therefore in accordance with the terms of the 1998 Stock Option Plan and the 2000 Stock Option Plan, will be validly issued, fully paid, and nonassessable. Our opinion expressed above is limited to the laws of the State of New York. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. Very truly yours, HOPKINS & SUTTER By: /s/ Michael J. Gamsky ----------------------- Michael J. Gamsky, a Partner EX-23.01 3 CONSENT OF RICHARD A. EISNER & COMPANY, LLP 1 Exhibit 23.01 Consent of Richard A. Eisner & Company, LLP CONSENT We consent to the incorporation by reference in the Registration Statement on Form S-8 of American Bio Medica Corporation of our report dated June 17, 1999 (with respect to Note H(4), July 1, 1999) on our audits of the financial statements of American Bio Medica Corporation, as of April 30, 1999 and for each of the two years then ended included in the Company's Annual Report on Form 10-KSB for the year ended April 30, 1999. New York, New York November 15, 1999 /s/Richard A. Eisner & Company, LLP. ----------------------------------- Richard A. Eisner & Company, LLP -----END PRIVACY-ENHANCED MESSAGE-----