As filed with the Securities and Exchange Commission on August 13, 1997
Registration No. 333-
________________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
BIONX IMPLANTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 22-3458598
(State or other jurisdiction of (I.R. S. Employer)
incorporation or organization) Identification No.)
1777 Sentry Parkway West, Gwynedd Hall, Suite 400
Blue Bell, Pennsylvania 19422 19422
(Address of Principal Executive Offices) (Zip Code)
BIONX IMPLANTS, INC.
1996 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plan)
David W. Anderson
Bionx Implants, Inc.
1777 Sentry Parkway West, Gwynedd Hall, Suite 400
Blue Bell, Pennsylvania 19422
(Name, address and telephone number, including area code,
of agent for service)
with a copy to:
Peter H. Ehrenberg, Esq.
Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
65 Livingston Avenue
Roseland, New Jersey 07068
CALCULATION OF REGISTRATION FEE
_______________________________________________________________________________
Proposed Proposed
Title of maximum maximum
securities offering aggregate Amount of
to be Amount to be price per offering registration
registered registered unit (1) price fee
________________________________________________________________________________
Common Stock,
par value $.0019
per share 850,000 sh.(2) $27.31 $23,213,500 $7,035
________________________________________________________________________________
(1) Pursuant to Rule 457, the proposed maximum offering price per share is
estimated solely for the purpose of computing the amount of the
registration fee and is based on the average of the high and low sales
price of the Common Stock of the registrant reported on the National Market
System of the National Association of Securities Dealers Automated
Quotation System on August 11, 1997.
(2) Plus such indeterminate number of additional shares as shall become
issuable pursuant to the anti-dilution provisions of the above-mentioned
options.
________________________________________________________________________________
PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, filed by Bionx Implants, Inc. (the "Company") with
the Securities and Exchange Commission (the "SEC") are hereby incorporated by
reference:
(a) the Company's Prospectus, dated April 25, 1997, filed pursuant to Rule
424(b) under the Securities Act of 1933, as amended;
(b) the Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1997;
(c) the Company's Current Report on Form 8-K dated May 20, 1997; and
(d) the description of the Common Stock of the Company contained in the
Company's Form 8-A declared effective by the SEC on April 24, 1997.
All documents subsequently filed by the Company 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
a part hereof from the date of filing of such documents. Any statement contained
herein or in a document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
registration statement to the extent that such statement is modified or
superseded by a subsequently filed document which also is or is deemed to be
incorporated by reference herein. Any such statement so modified or superseded
shall not be deemed to constitute a part of this registration statement 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.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
The Company's Certificate of Incorporation provides that the Company shall
indemnify to the fullest extent permitted by Section 145 of the Delaware General
Corporation Law, and the Compan's by-laws provide that the Company shall
indemnify to the fullest extent permitted by law, all present and former
directors and officers, and any such person serving or agreeing to serve as an
officer or director (or, in the case of the Certificate of Incorporation in any
other capacity), with any other enterprise at the Company's request, in
connection with any proceeding threatened, pending or instituted against such
party by reason of their serving or agreeing to serve in such capacity. The
Company's Certificate of Incorporation also permits indemnification of the
Company's agents extending to the limits created by Delaware law. The Company's
By-Laws describe certain procedures applicable to indemnification rights.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
4.1 Registrant's Restated Certificate of Incorporation is incorporated by
reference to Exhibit 3.2 of Amendment No. 4 to Registrant's Registration
Statement on Form S-1 (No. 333-22359).
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
23.1 Independent Auditors' Consent (KPMG Peat Marwick LLP)
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C. (included
in Exhibit 5.1)
24.1 Power of Attorney
Item 9. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are 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 1993;
(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; 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;
Provided, however, that Paragraphs (1)(i) and (1)(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 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference 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 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.
The undersigned registrant 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 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
of 1933 may be permitted to directors, officers or 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 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 that 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 of 1933 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 Town of Blue Bell, State of Pennsylvania, on the 13th day of
August, 1997.
BIONX IMPLANTS, INC.
By: /s/ David W. Anderson
____________________________
David W. Anderson, 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 dates indicated.
<TABLE>
Signatures Title Date
<S> <C> <C>
/s/ Terry D. Wall* Chairman of the Board August 13, 1997
Terry D. Wall
/s/David W. Anderson Director, President and Chief August 13, 1997
David W. Anderson Executive Officer
/s/David J. Bershad* Director August 13, 1997
David J. Bershad
/s/Anthony J. Dimun* Director August 13, 1997
Anthony J. Dimun
/s/David H. MacCallum, Jr.* Director August 13, 1997
David H. MacCallum, Jr.
/s/Pertti Tormala* Director August 13, 1997
Pertti Tormala
/s/Michael J. O'Brien* Chief Financial and Accounting August 13, 1997
Michael J. O'Brien Officer
</TABLE>
*By:/s/David W. Anderson
_______________________
David W. Anderson,
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
4.1 Registrant's Restated Certificate of Incorporation
(incorporated by reference)
5.1 Opinion of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
23.1 Independent Auditors' Consent (KPMG Peat Marwick LLP)
23.2 Consent of Lowenstein, Sandler, Kohl, Fisher & Boylan, P.C.
is included in Exhibit 5.1
24.1 Power of Attorney
August 13, 1997
Bionx Implants, Inc.
1777 Sentry Parkway West
Gwynedd Hall, Suite 400
Blue Bell, Pennsylvania 19422
Gentlemen:
You have requested our opinion in connection with the registration with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"), of 850,000 shares of the common stock ("Common Stock"), par value
$.0019 per share, of Bionx Implants, Inc. (the "Company") on a registration
statement on Form S-8 (the "Registration Statement"). The shares of Common Stock
to which the Registration Statement relates are issuable pursuant to the
Company's 1996 Stock Option/Stock Issuance Plan (the "Plan").
We have examined and relied upon originals or copies, authenticated or
certified to our satisfaction, of all such corporate records of the Company,
communications or certifications of public officials, certificates of officers,
directors and representatives of the Company, and such other documents as we
have deemed relevant and necessary as the basis of the opinions expressed
herein. In making such examination, we have assumed the genuineness of all
signatures, the authenticity of all documents tendered to us as originals, and
the conformity to original documents of all documents submitted to us as
certified or photostatic copies.
Based upon the foregoing and relying upon statements of fact contained in
the documents which we have examined, we are of the opinion that the shares of
Common Stock offered by the Company pursuant to the Plan, when registered
pursuant to the Act and paid for in full by the participants in accordance with
the Plan, will be, when issued, legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and any amendment thereto.
Very truly yours,
LOWENSTEIN, SANDLER, KOHL,
FISHER & BOYLAN, P.A.
By:/s/Laura R. Kuntz
________________________
Laura R. Kuntz
The Board of Directors
Bionx Implants, Inc.
We consent to the incorporation by reference in the registration statement on
Form S-8 of Bionx Implants, Inc. of our report dated January 24, 1997, except
for the first paragraph of Note 15 which is as of February 24, 1997, relating to
the consolidated balance sheets of Bionx Implants, Inc. and subsidiaries as of
December 31, 1995 and 1996, and the related consolidated statements of
operations, shareholders' equity (deficit) and cash flows for each of the years
in the three-year period ended December 31, 1996, which report appears in the
Company's registration statement (No. 333-22359) on Form S-1 dated April 24,
1997.
/s/ KPMG Peat Marwick LLP
______________________________
KPMG Peat Marwick LLP
August 13, 1997
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Bionx Implants, Inc.
desire to authorize David W. Anderson and Michael J. O'Brien to act as their
attorneys-in-fact and agents, for the purpose of executing and filing a
registration statement on Form S-8, including all amendments thereto,
NOW, THEREFORE,
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David W. Anderson and Michael J. O'Brien , and
each of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, to sign a Registration Statement on Form S-8
registering up to 850,000 shares of the Common Stock of Bionx Implants, Inc.
issuable pursuant to the 1996 Bionx Implants, Inc. 1996 Stock Option/ Stock
Issuance Plan, including any and all amendments and supplements thereto, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 and to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned have executed this power of attorney in
the following capacities on this 12th day of August, 1997.
Signatures Title
/s/ Terry D. Wall Chairman of the Board
______________________________
Terry D. Wall
/s/ David W. Anderson
______________________________ Director, President and Chief
David W. Anderson Executive Officer
/s/ David J. Bershad Director
______________________________
David J. Bershad
/s/ Anthony J. Dimun
______________________________ Director
Anthony J. Dimun
/s/ David H. MacCallum, Jr.
______________________________ Director
David H. MacCallum, Jr.
/s/ Pertti Tormala
_____________________________ Director
Pertti Tormala
/s/ Michael J. O'Brien
_____________________________ Chief Financial and Accounting
Michael J. O'Brien Officer
