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As filed with the Securities and Exchange Commission on November 5, 1999
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SYNBIOTICS CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-3737816
(State or other jurisdiction (IRS Employer of Identification No.)
incorporation or organization)
11011 VIA FRONTERA 92127
SAN DIEGO, CALIFORNIA (Zip Code)
(Address of principal executive offices)
1995 STOCK OPTION/STOCK ISSUANCE PLAN
(Full title of the plan)
KENNETH M. COHEN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
SYNBIOTICS CORPORATION
11011 VIA FRONTERA, SAN DIEGO, CALIFORNIA 92127
(Name and address of agent for service)
(858) 451-3771
(Telephone number, including area code, of agent for service)
With Copies To:
Hayden J. Trubitt, Esq.
Brobeck, Phleger & Harrison LLP
550 West C Street, Suite 1200
San Diego, CA 92101
_________________
This Registration Statement shall become effective immediately upon filing
with the Securities and Exchange Commission, and sales of the registered
securities will thereafter be effected upon option exercises effected under the
1995 Stock Option/Stock Issuance Plan.
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
REGISTERED REGISTERED SHARE (2) PRICE (2) REGISTRATION FEE
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<S> <C> <C> <C> <C>
Common Stock (under 1995 Stock
Option/Stock Issuance Plan) 611,666(1) $2.45 $1,498,582 n/a
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Common Stock registered on this Form, for
which new registration fees are paid (3) 600,000 $2.45 $1,470,000 $408.66
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</TABLE>
(1) This Registration Statement shall also cover any additional shares of Common
Stock which become issuable under the 1995 Stock Option/Stock Issuance Plan
by reason of any stock dividend, stock split, recapitalization or other
similar transaction effected without the receipt of consideration which
results in an increase in the number of the Company's outstanding shares of
Common Stock.
(2) Calculated solely for purposes of this offering under Rule 457(h) and 457(c)
of the Securities Act of 1933, as amended, and based on the average of the
high and low prices of the Registrant's Common Stock as reported by the
Nasdaq National Market on November 3, 1999.
(3) Filings fees were previously paid for a Form S-8 registration statement for
the registrant's 1998 Stock Option Plan (152,565 shares; Registration No.
333-73127). All outstanding stock options under the 1998 Plan have been
rolled into the registrant's 1995 Stock Option/Stock Issuance Plan. The
11,666 registered shares not yet issued under the 1998 Plan will be
deregistered. The 1995 Stock Option/Stock Issuance Plan has been amended to
increase the number of covered shares from 2,000,000 to 2,611,666. The
2,000,000 shares had previously been registered on Form S-8 (Registration
No. 33-61103 and No. 333-42723). Of the 611,666 shares constituting the
increase and being registered hereby, the registration fee as to 11,666
shares is satisfied by "transferring over" the 11,666 registered but unused
shares from the 1998 Plan. See Division of Corporate Finance Manual of
Publicly Available Telephone Interpretations, Securities Act Forms Q89 (July
1997). This leaves 600,000 shares, for which the full Form S-8 Instruction
E/Section 6(b)/Rule 457 registration fee is being paid herewith.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
Synbiotics Corporation (the "Company") hereby incorporates by reference into
this Registration Statement the following documents previously filed with the
Securities and Exchange Commission (the "Commission"):
(a) The Company's Annual Report on Form 10-KSB for the year ended December 31,
1998;
(b) The Company's Quarterly Reports on Form 10-QSB for the quarters ended March
31 and June 30, 1999;
(c) The Company's Current Report on Form 8-K/A dated April 2, 1999;
(d) The Company's Registration Statement on Form 8-A filed with the Commission
on November 14, 1983 and declared effective on January 13, 1984 pursuant to
Section 12 of the Exchange Act, in which there is described the terms,
rights and provisions applicable to the Company's Common Stock;
(e) The Company's Registration Statement on Form 8-A filed with the Commission
on October 7, 1998 and declared effective on January 13, 1984 pursuant to
Section 12 of the Exchange Act, in which there is described the terms,
rights and provisions applicable to the Company's Preferred Stock Purchase
Rights.
All reports and other documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents.
A copy of any of the above documents will be furnished to each participant in
the 1995 Stock Option/Stock Issuance Plan, without charge, upon written or oral
request to the Corporate Secretary, Synbiotics Corporation, 11011 Via Frontera,
San Diego, California 92127, or upon telephoning the Company at (858) 451-3771.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Section 317 of the California General Corporation Law provides for the
indemnification of officers and directors of the Company against expenses,
judgments, fines and amounts paid in settlement under certain conditions
and subject to certain limitations.
(b) Article VIII, Section 4 of the Bylaws of the Company provides that the
Company shall have the power to indemnify any person who is or was a
director, officer, employee or agent of the Company or any person who is or
was serving at the request of the Company as a director, officer, employee
or agent of another corporation, subject to certain limitations. The rights
to indemnity thereunder continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of the person. In addition, expenses
incurred by a director, officer, employee or agent in defending a civil or
criminal action, suit or proceeding by reason of the fact that he or she
is or was a director, officer, employee or agent of the Company (or was
serving at the Company's request as a director, officer, employee or agent
of another corporation) may be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such
amount if it shall ultimately be determined that he or she is not entitled
to be indemnified by the Company.
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(c) Article Seventh of the Company's Restated Articles of Incorporation
provides that liability of the directors of the Company for monetary
damages shall be eliminated to the fullest extent permissible under
California Law. Article Eighth of the Company's Restated Articles of
Incorporation further provides that the Company is authorized to indemnify
agents (as defined in Section 317 of the California Law) in excess of the
indemnification otherwise permitted by Section 317, subject to the limits
set forth in Section 204 of the California Law.
(d) Pursuant to authorization provided under the Restated Articles of
Incorporation, the Company has entered into indemnification agreements with
its directors and officers. Generally, the indemnification agreements
attempt to provide the maximum protection permitted by California Law as it
may be amended from time to time. Moreover, the indemnification agreements
provide for certain additional indemnification. The indemnification
agreements provide for the Company to advance to the individual any and all
reasonable expenses (including legal fees and expenses) incurred in
investigating or defending an action, suit or proceeding. In order to
receive an advance of expenses, the individual must undertake to repay such
advance upon a determination that he or she is not entitled to
indemnification. The Company's Bylaws contain a provision of similar
effect relating to advancement of expenses to a director or officer,
subject to an undertaking to repay if it is ultimately determined that
indemnification is unavailable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
ITEM 8. EXHIBITS
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<CAPTION>
Exhibit Number Exhibit
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<S> <C>
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit 5.1 of this
Registration Statement on Form S-8).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney. Reference is made to the signature page of this Registration
Statement on Form S-8.
99.1 1995 Stock Option/Stock Issuance Plan, as amended. (Incorporated by reference to
Exhibit 10.50 to the Company's Form 10-QSB for the quarter ended June 30, 1999).
99.2 Form of Notice of Grant of Stock Option/Stock Option Agreement. (Incorporated by
reference to Exhibit 99.2 to the Company's Registration Statement on Form S-8,
Registration No. 33-61103, filed July 19, 1995).
</TABLE>
ITEM 9. UNDERTAKINGS
(1) The undersigned registrant 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 of 1933, as amended (the "1933 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
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(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 (a)(i) and (a)(ii) shall not apply if
the information required to be in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Company pursuant
to Section 13 or Section 15(d) of the 1934 Act that are incorporated by
reference into this Registration Statement.
(b) That, for the purpose of determining any liability under the 1933 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; and
(c) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold upon the
termination of the offering.
(2) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the Company's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the 1934 Act) that is incorporated by
reference in this 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.
(3) Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been
advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Company of expenses incurred or
paid by a director, officer or controlling person of the Company 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 Company 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 1933 Act 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 City of San Diego, State of California, on November 5, 1999.
SYNBIOTICS CORPORATION
By: /s/ Kenneth M. Cohen
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Kenneth M. Cohen
President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Kenneth M. Cohen and Michael K. Green, or either of
them, as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any Registration Statement
related to this Registration Statement and filed pursuant to Rule 462 under the
Securities Act of 1933, as amended, 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, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith as fully 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 their substitute or substitutes may
lawfully 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ Kenneth M. Cohen Chief Executive Officer, President and Director November 5, 1999
- --------------------------------------------------- (Principal Executive Officer)
Kenneth M. Cohen
/s/ Michael K. Green Chief Financial Officer and November 5, 1999
- --------------------------------------------------- Vice President - Finance
Michael K. Green (Principal Financial Officer)
/s/ Keith A. Butler Chief Accounting Officer and Corporate Controller November 5, 1999
- --------------------------------------------------- (Principal Accounting Officer)
Keith A. Butler
/s/ Patrick Owen Burns Director November 5, 1999
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Patrick Owen Burns
/s/ James C. DeCesare Director November 5, 1999
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James DeCesare
/s/ Brenda D. Gavin Director November 5, 1999
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Brenda D. Gavin
/s/ M. Blake Ingle Director November 5, 1999
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M. Blake Ingle
/s/ Joseph Klein III Director November 5, 1999
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Joseph Klein III
/s/ Donald E. Phillips Director November 5, 1999
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Donald E. Philips
</TABLE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
EXHBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
SYNBIOTICS CORPORATION
<PAGE>
EXHIBIT INDEX
Exhibit Number Exhibit
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5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in
Exhibit 5.1 of this Registration Statement on Form S-8).
23.2 Consent of Independent Accountants.
24.1 Power of Attorney. Reference is made to the signature
page of this Registration Statement on Form S-8.
99.1 1995 Stock Option/Stock Issuance Plan, as amended.
(Incorporated by reference to Exhibit 10.50 to the
Company's Form 10-QSB for the quarter ended June 30,
1999).
99.2 Form of Notice of Grant of Stock Option/Stock Option
Agreement. (Incorporated by reference to Exhibit 99.2 to
the Company's Registration Statement on Form S-8,
Registration No. 33-61103, filed July 19, 1995).
<PAGE>
EXHIBIT 5.1
OPINION AND CONSENT OF BROBECK, PHLEGER & HARRISON LLP
November 5, 1999
Synbiotics Corporation
11011 Via Frontera
San Diego, CA 92127
Re: Synbiotics Corporation Registration Statement on Form S-8 for 611,666
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Shares of Common Stock
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Ladies and Gentlemen:
In connection with your registration on Form S-8 (the "Registration Statement")
under the Securities Act of 1933, as amended, of 611,666 shares of Common Stock
of Synbiotics Corporation (the "Company") under the 1995 Stock Option/Stock
Issuance Plan, as amended to date (the "Plan"), we advise you that, in our
opinion, if and when such shares have been issued and sold (and the
consideration therefor received) pursuant to (a) the provisions of the option
agreements issued under the Plan and in accordance with the Registration
Statement, or (b) direct stock issuances in accordance with the Plan and in
accordance with the Registration Statement, such shares will be duly-authorized,
validly-issued, fully-paid and non-assessable shares of the Company's Common
Stock.
We hereby consent to the use of this opinion as an exhibit to the Registration
Statement and further consent to all references to us in the Registration
Statement and any further amendments thereto. Subject to the foregoing
sentence, this opinion is given as of the date hereof solely for your benefit
and may not be relied upon, circulated, quoted or otherwise referred to for any
purpose without our prior written consent.
Very truly yours,
/s/ Brobeck, Phleger & Harrison LLP
BROBECK, PHLEGER & HARRISON LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 11, 1999 relating to the
financial statements which appear in Synbiotics Corporation's Annual Report on
Form 10-KSB for the year ended December 31, 1998.
PRICEWATERHOUSECOOPERS LLP
San Diego, California
November 5, 1999
