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As filed with the Securities and Exchange Commission on February 8, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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BIONX IMPLANTS, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 22-3458598
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
1777 SENTRY PARKWAY WEST
GWYNEDD HALL, SUITE 400
BLUE BELL, PENNSYLVANIA 19122
(Address of principal executive offices; zip code)
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BIONX INVESTMENT PLAN
(Full title of the plan)
GERARD S. CARLOZZI, PRESIDENT
BIONX IMPLANTS, INC.
1777 SENTRY PARKWAY WEST
GWYNEDD HALL, SUITE 400
BLUE BELL, PENNSYLVANIA 19122
(215) 643-5000
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
PETER H. EHRENBERG, ESQ.
LOWENSTEIN SANDLER PC
65 LIVINGSTON AVENUE
ROSELAND, NEW JERSEY 07068
(973) 597-2500
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Proposed Proposed
Title of Securities Amount to be Maximum Offering Maximum Aggregate Amount of
to be Registered Registered Price per Share(2) Offering Price (2) Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.0019 per share 500,000 shares (1) $4.1875 $2,093,750 $552.75
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</TABLE>
(1) Plus such additional shares of Common Stock as may be issuable pursuant to
the anti-dilution provisions of the Registrant's Investment Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) of the Securities Act of 1933 on the basis of
the average of the high and low sale prices for a share of Common Stock on the
National Market System of Nasdaq on February 4, 2000.
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PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate" into this Registration Statement
information we file with it in other documents. This means that we can disclose
important information to you by referring to other documents that contain that
information. The information incorporated by reference is considered to be part
of this Registration Statement, and information we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below, except to the extent information in those documents
is different from the information contained in this Registration Statement, and
all future documents filed by us with the SEC under Sections 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until we file a post-effective
amendment which indicates that all shares offered have been sold or which
deregisters all shares then remaining unsold.
(1) our Annual Report on Form 10-K, as amended, for the year ended
December 31, 1998;
(2) our Quarterly Reports on Form 10-Q, as amended, for the periods
ended March 31, 1999, June 30, 1999 and September 30, 1999; and
(3) the description of our common stock contained in our definitive
proxy materials for our 1999 annual meeting of shareholders.
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 1741 of the Pennsylvania Business Corporation Law (the "BCL")
permits a corporation to indemnify its directors and officers against expenses,
judgments, fines and amounts paid in settlement reasonably incurred by them in
connection with any pending, threatened or completed action or proceeding to
which they were or are parties or were threatened to be made parties by reason
of the fact that they are or were directors or officers of the corporation.
The BCL also permits indemnification against expenses reasonably
incurred in connection with any pending, threatened or completed derivative
action, if the director or officer has acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. Under the BCL, court approval
is required with respect to any payment made with respect to a derivative
action. Furthermore, the BCL provides that expenses incurred in defending any
action or proceeding may be paid by the corporation in advance of the final
disposition upon receipt of an undertaking by or on behalf of
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the director or officer to repay the amount if it is ultimately determined that
the director or officer is not entitled to be indemnified by the corporation.
The Registrant's Articles of Incorporation contain the following
provisions concerning indemnification:
"ARTICLE 10:
Section 1. Every person who is or was a director of officer of
the Company shall be indemnified by the Company to the fullest extent allowed by
the BCL against all liabilities and expenses imposed upon or incurred by that
person in connection with any proceeding in which that person may be made, or
threatened to be made, a party, or in which that person may become involved by
reason of that person being or having been a director or officer or of serving
or having served in any capacity with any other enterprise at the request of the
Company, whether or not that person is a director or officer or continues to
serve the other enterprise at the time the liabilities or expenses are imposed
or incurred.
Section 2. To the fullest extent permitted by applicable law,
the Company is authorized to provide indemnification of (and advancement of
expenses to) agents of the Company (and any other persons to which Pennsylvania
law permits the Company to provide indemnification) through bylaw provisions,
agreements with such agents or other persons, votes of shareholders or
disinterested directors or otherwise, in excess of the indemnification and
advancement otherwise permitted by the BCL subject only to limited created by
applicable Pennsylvania law (statutory or non-statutory), with respect to
actions for breach of duty to the Company, its shareholders and others."
The Registrant's Articles of Incorporation also contain the
following provision concerning the personal liability of directors:
"ARTICLE 9:
Section 1. To the fullest extent permitted by the BCL as the
same exists or as may hereafter be amended, a director of the Company shall not
be personally liable to the Company or its shareholders for monetary damages for
breach of fiduciary duty as a director."
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The Exhibits accompanying this Registration Statement are listed on the
accompanying Exhibit Index.
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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 acts 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. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective 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)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or Section 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.
(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 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.
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(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,
the registrant has been advised that in the opinion of the Commission 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 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.
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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 Blue Bell, in the Commonwealth of Pennsylvania, on
February 8, 2000.
BIONX IMPLANTS, INC.
By: /s/ Gerard S. Carlozzi
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Gerard S. Carlozzi, President
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 February 8, 2000.
Signature Title
- --------- -----
/s/ Gerard S. Carlozzi President, Chief Executive
- ------------------------------ Officer and Director
Gerard S. Carlozzi
- ------------------------------ Director
David J. Bershad
/s/ Anthony J. Dimun*
- ------------------------------ Director
Anthony J. Dimun
- ------------------------------ Director
David H. MacCallum
/s/ Pertti Tormala*
- ------------------------------ Director
Pertti Tormala
/s/ Terry D. Wall*
- ------------------------------ Director
Terry D. Wall
/s/ Drew Karazin*
- ------------------------------ Vice President-Finance and
Drew Karazin Chief Financial Officer
* By: /s/ Gerard S. Carlozzi
----------------------
Gerard S. Carlozzi,
Attorney-in-Fact
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EXHIBIT INDEX
4.1 Articles of Incorporation of the Registrant are incorporated
herein by reference to Exhibit 3.1 to the Registrant's
Quarterly Report on Form 10-Q for the period ended September
30, 1999.
4.2 By-laws of the Registrant are incorporated herein by
reference to Exhibit 3.2 to the Registrant's Quarterly
Report on Form 10-Q for the period ended September 30, 1999.
5.1 Opinion of Lowenstein Sandler PC.
23.1 Consent of KPMG LLP.
23.2 Consent of Lowenstein Sandler PC is included in Exhibit 5.1.
24.1 Power of Attorney.
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EXHIBIT 5.1
OPINION OF LOWENSTEIN SANDLER PC
February 8, 2000
Bionx Implants, Inc.
1777 Sentry Parkway West
Gwynedd Hall, Suite 400
Blue Bell, Pennsylvania 19122
Re: Bionx Implants, Inc. - Registration Statement on Form S-8
Ladies & Gentlemen:
We are acting as special counsel to Bionx Implants, Inc., a Pennsylvania
corporation ("Bionx"), in connection with the Registration Statement on Form S-8
being filed by Bionx with the Securities and Exchange Commission (the
"Registration Statement") with respect to up to 500,000 shares of Bionx Common
Stock, par value $.0019 per share ("Bionx Common Stock"), proposed to be issued
in connection with the Bionx Investment Plan (the "Plan"). In connection with
this opinion, we have reviewed the Registration Statement and the exhibits
thereto, and we have examined originals or copies, certified or otherwise
identified to our satisfaction, of such corporate records, agreements,
certificates of public officials and of officers of Bionx, and other
instruments, and such matters of law and fact as we have deemed necessary to
render the opinion contained herein.
Based upon and subject to the foregoing, we are of the opinion that the shares
of Bionx Common Stock being registered under the Registration Statement, when
issued pursuant to the Plan following approval by the requisite votes of the
stockholders of Bionx, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In giving such consent,
we do not hereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
/s/ LOWENSTEIN SANDLER PC
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Bionx Implants, Inc.
We consent to the use of our report, incorporated herein by reference,
in the Form S-8 of Bionx Implants, Inc.
/s/KPMG LLP
Philadelphia, Pennsylvania
February 7, 2000
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EXHIBIT 24.1
POWER OF ATTORNEY
WHEREAS, the undersigned officers and directors of Bionx Implants, Inc.
desire to authorize Gerard Carlozzi and Drew Karazin 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 Gerard Carlozzi and Drew Karazin, 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 500,000 shares of common stock of Bionx Implants, Inc. issuable in
connection with the Bionx Investment 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 8th day of February, 2000.
SIGNATURES TITLE
/s/ Gerard S. Carlozzi
- ------------------------ President, Chief Executive Officer
Gerard S. Carlozzi and Director
- ------------------------ Director
David J. Bershad
/s/ Anthony J. Dimun
- ------------------------ Director
Anthony J. Dimun
- ------------------------ Director
David H. MacCallum
/s/ Pertti Tormala
- ------------------------ Director
Pertti Tormala
/s/ Terry D. Wall
- ------------------------ Director
Terry D. Wall
/s/ Drew Karazin
- ------------------------ Vice President - Finance and
Drew Karazin Chief Financial Officer
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