Registration No. ___________
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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Bioanalytical Systems, Inc.
(Exact name of registrant as specified in its charter)
Indiana. . . . . . . . . . . . . . . . . . . . . . . . 35-1345024
(State or other jurisdiction of. . . . . . . . . . . . (I.R.S. Employer
incorporation or organization) . . . . . . . . . . . . Identification No.)
2701 Kent Avenue
West Lafayette, Indiana 47906
(Address of Principal Executive Offices)
Bioanalytical Systems, Inc. 1997 Employee
Incentive Stock Option Plan
(Full title of the plan)
Doug Wieten, Chief Financial Officer,
Controller and Treasurer
Bioanalytical Systems, Inc.
2701 Kent Avenue
West Lafayette, Indiana 47906
(Name and address of agent for service)
(765)463-4527
(Telephone number, including
area code, of agent for service)
Copies to:
Berkley W. Duck
Ice Miller Donadio & Ryan
One American Square, Box 82001
Indianapolis, Indiana 46282
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Calculation of Registration Fee
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Proposed Proposed maximum
Title of securities. Amount to be maximum offering aggregate offering Amount of
to be registered(1) Registered price per unit(2) price(2) registration fee
Common Shares. . . . 95,000 Shares $7.75 $736,250 $223.11
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(1)In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
Act ), this registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan described herein.
(2)The registration fee has been calculated pursuant to Rule 457(c) and (h) based upon the
average of the high and low prices for the Common Shares as reported on the National
Association of Securities Dealers Automated Quotations System on June 2, 1998.
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INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following information heretofore filed with the Securities and Exchange
Commission ( Commission ) pursuant to the Securities Exchange Act of 1934, as
amended (the Exchange Act ), is incorporated herein by reference:
(a) The Registrant's prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 on November 27, 1997, File No.
333-36429.
(b) The description of the Registrant's Capital Stock and the Specimen
Certificate for Common Shares contained in Amendment Number 3 to the
Registrant's Registration Statement on Form S-1, filed November 25, 1997, File
No. 333-36429.
(c) The Registrant's Form 10-Q quarterly report for the quarter ended March
31, 1998, filed on May 15, 1998, Commission File No. 333-36429.
(d) All documents filed by the Registrant with respect to the 1997
Bioanalytical Systems, Inc. Outside Director Stock Option Plan (the Plan )
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the
date of this Registration Statement and prior to the filing of a
post-effective amendment indicating that all of the securities offered hereby
have been sold or deregistering all such 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 those 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.
The Indiana Business Corporation Law ( IBCL ), the provisions of which govern
the Registrant, empowers an Indiana corporation to indemnify present and
former directors, officers, employees, or agents or any person who may have
served at the request of the corporation as a director, officer, employee, or
agent of another corporation ( Eligible Persons ) against liability incurred
in any proceeding, civil or criminal, in which the Eligible Person is made a
party by reason of being or having been in any such capacity, or arising out
of his status as such, if the individual acted in good faith and reasonably
believed that (a) the individual was acting in the best interests of the
corporation, or (b) if the challenged action was taken other than in the
individual's official capacity as an officer, director, employee or agent, the
individual's conduct was at least not opposed to the corporation's best
interests, or (c) if in a criminal proceeding, either the individual had
reasonable cause to believe his conduct was lawful or no reasonable cause to
believe his conduct was unlawful.
The IBCL further empowers a corporation to pay or reimburse the reasonable
expenses incurred by an Eligible Person in connection with the defense of any
such claim, including counsel fees; and, unless limited by its Articles of
Incorporation, the corporation is required to indemnify an Eligible Person
against reasonable expenses if he is wholly successful in any such proceeding,
on the merits or otherwise. Under certain circumstances, a corporation may
pay or reimburse an Eligible Person for reasonable expenses prior to final
disposition of the matter. Unless a corporation's articles of incorporation
otherwise provide, an Eligible Person may apply for indemnification to a court
which may order indemnification upon a determination that the Eligible Person
is entitled to mandatory indemnification for reasonable expenses or that the
Eligible Person is fairly and reasonably entitled to indemnification in view
of all the relevant circumstances without regard to whether his actions
satisfied the appropriate standard of conduct.
Before a corporation may indemnify any Eligible Person against liability or
reasonable expenses under the IBCL, a quorum consisting of directors who are
not parties to the proceeding must (1) determine that indemnification is
permissible in the specific circumstances because the Eligible Person met the
requisite standard of conduct, (2) authorize the corporation to indemnify the
Eligible Person and (3) if appropriate, evaluate the reasonableness of
expenses for which indemnification is sought. If it is not possible to obtain
a quorum of uninvolved directors, the foregoing action may be taken by a
committee of two or more directors who are not parties to the proceeding,
special legal counsel selected by the Board or such a committee, or by the
shareholders of the corporation.
In addition to the foregoing, the IBCL states that the indemnification it
provides shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under any provision of the articles of
incorporation or bylaws, resolution of the board of directors or shareholders,
or any other authorization adopted after notice by a majority vote of all the
voting shares then issued and outstanding. The IBCL also empowers an Indiana
corporation to purchase and maintain insurance on behalf of any Eligible
Person against any liability asserted against or incurred by him in any
capacity as such, or arising out of his status as such, whether or not the
corporation would have had the power to indemnify him against such liability.
Article V of the Second Amended and Restated Articles of Incorporation of the
Registrant, filed the as part of the Registrant's Registration Statement on
Form S-1 on November 21, 1997, File No. 333-36429, provides certain
indemnification provisions for the benefit of directors, officers, employees
and agents of the Registrant.
The Registrant may obtain directors and officers liability insurance, the
effect of which will be to indemnify the directors and officers of the
corporation and its subsidiaries against certain losses caused by errors,
misleading statements, wrongful acts, omissions, neglect or breach of duty by
them or any matter claimed against them in their capacities as directors and
officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
See Index to Exhibits.
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:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(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;
(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) shall 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
Exchange Act 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.
(4) 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 Exchange Act (and, where applicable, each filing
of an employee benefit 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 therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) 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 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 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 West Lafayette, State of Indiana, on May 7, 1998.
BIOANALYTICAL SYSTEMS, INC.
By: /s/ Peter T. Kissinger
Title: Chairman and Chief Executive Officer
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature appears below
constitutes and appoints Peter T. Kissinger and Douglas P. Wieten, and each or
any of them (with full power to act alone), his or her true and lawful
attorneys-in-fact and agents with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any and all amendments to this Registration
Statement, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange
Commission, granting unto those 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 and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that those attorneys-in-fact and agents, or their 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 date indicated:
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SIGNATURE. . . . . . . . . CAPACITY DATE
WITH REGISTRANT
/s/ Peter T. Kissinger. President, Chief Executive 5/7/98
Peter T. Kissinger . . . . Officer,
Director, and Principal
Executive Officer
/s/ Douglas P. Wieten. . Chief Financial Officer, 5/15/98
Douglas P. Wieten. . . . . Controller,Treasurer,
Principal Financial Officer
and Accounting Officer
/s/ William Baitinger. . Director 5/7/98
William Baitinger
/s/ Michael Campbell . . Director 5/7/98
Michael Campbell
______________ . . . . . . Director
Thomas A. Hiatt
/s/ Candice B. Kissinger Director 5/7/98
Candice B. Kissinger
/s/ John Kraeutler . . . Director 5/7/98
John Kraeutler
/s/ William Mulligan . . Director 5/7/98
William Mulligan
/s/ Ronald E. Shoup. . . Director 5/7/98
Ronald E. Shoup
________________ . . . . . Director
W. Leigh Thompson
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Pursuant to the requirements of the Securities Act of 1933, the Plan
Administrator has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of West
Lafayette, State of Indiana, on May 7, 1998.
BIOANALYTICAL SYSTEMS, INC.
1997 EMPLOYEE INCENTIVE STOCK
OPTION PLAN
By: /s/ Peter T. Kissinger
Title: Chairman and Chief Executive Officer
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BIOANALYTICAL SYSTEMS, INC.
REGISTRATION STATEMENT
ON
FORM S-8
INDEX TO EXHIBITS
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Exhibit Number
Assigned in
Regulation S-K
Item 601 Description of Exhibit
(4) . . . . . . 4.01 Specimen Certificate for Common Shares (incorporated
by reference to Exhibit 4.1 to Amendment Number 3 to
the Registrant's Registration Statement on Form S-1,
filed November 25, 1997, File No. 333-36429)
(5) . . . . . . 5.01 Opinion of Ice Miller Donadio & Ryan
(15) Not Applicable
(23). . . . . . 23.01 Consent of Ernst & Young LLP
23.02 Consent of Ice Miller Donadio & Ryan (Contained in
Exhibit 5.01)
(24) Power of Attorney (See Page 6)
(28) Not Applicable
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Exhibit 23.01
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Bioanalytical Systems, Inc. 1997 Employee
Incentive Stock Option Plan of our report dated October 31, 1997 (except for
Note 10, as to which the date is November 21, 1997) with respect to the
consolidated financial statements of Bioanalytical Systems, Inc. included in
its Registration Statement on Form S-1 (No. 333-36429) dated November 24, 1997
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Indianapolis, Indiana
June 1, 1998
Exhibit 23.02
June 1, 1998
Board of Directors
Bioanalytical Systems, Inc.
2701 Kent Avenue
West Lafayette, Indiana 47906
Ladies and Gentlemen:
We have acted as counsel to Bioanalytical Systems, Inc., an Indiana
corporation (the Company ), in connection with the filing of a Registration
Statement on Form S-8 (the Registration Statement ), with the Securities and
Exchange Commission (the Commission ) for the purposes of registering under
the Securities Act of 1933, as amended (the Securities Act ), 95,000 of the
Company's authorized but unissued Common Shares (the Shares ) issuable upon
exercise of options which may be granted under the Bioanalytical Systems, Inc.
1997 Employee Incentive Stock Option Plan (the Plan ).
In connection therewith, we have investigated those questions of law as
we have deemed necessary or appropriate for purposes of this opinion. We have
also examined originals, or copies certified or otherwise identified to our
satisfaction, of those documents, corporate or other records, certificates and
other papers that we deemed necessary to examine for purposes of this opinion,
including:
1. Resolutions of the Board of Directors Meeting on October 23, 1997
relating to the approval of the Plan and reserving shares for issuance under
the Plan (the Resolutions );
2. Resolutions of the Shareholders of the Company relating to the
approval of the Plan and reserving shares for issuance under the Plan (
Shareholder Resolutions );
3. The Form S-8 Registration Statement;
4. The Plan; and
5. Copies of the Articles of Incorporation of the Company and all
amendments thereto.
We have also relied, without investigation as to the accuracy thereof, on oral
and written communications from public officials and officers of the Company.
For purposes of this opinion, we have assumed (i) the genuineness of all
signatures of all parties other than the Company; (ii) the authenticity of all
documents submitted to us as originals and the conformity to authentic
originals of all documents submitted to us as certified or photostatic copies;
(iii) that the Resolutions will not be amended, altered or superseded prior to
the issuance of the Shares; and (iv) that no changes will occur in the
applicable law or the pertinent facts prior to the issuance of the Shares.
Based upon the foregoing and subject to the qualifications set forth in
this letter, we are of the opinion that the Shares are validly authorized and,
when (a) the pertinent provisions of the Securities Act and all relevant state
securities laws have been complied with and (b) the Shares have been delivered
against payment therefor as contemplated by the Plan, the Shares will be
legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, we do not admit that we are
within the category of persons whose consent is required under Section 7 of
the Securities Act or under the rules and regulations of the Commission
relating thereto.
Very truly yours,
/s/ ICE MILLER DONADIO & RYAN
