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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1934
BIOMERICA, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2545573
- ------------------------------ -----------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1533 Monrovia Avenue Newport Beach, California 92663
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(Address of Principal Executive Offices) (Zip Code)
Biomerica, Inc. 1999 Stock Incentive Plan
-----------------------------------------
(Full title of the plan)
Zackary S. Irani
Biomerica, Inc.
1533 Monrovia Avenue
Newport Beach., California 92663
--------------------------------
(Name and address of agent for service)
949-645-2111
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
======================== ==================== ==================== ========================== ======================
Proposed maximum
Title of securities to Amount to be offering price per Proposed maximum Amount of
be registered registered unit aggregate offering price registration fee
- ------------------------ -------------------- -------------------- -------------------------- ----------------------
<S> <C> <C> <C> <C>
Common Stock, $.08 par 1,000,000 shares $3.328125(1) $3,328,125(1) $878.63
value
======================== ==================== ==================== ========================== ======================
</TABLE>
1) Based upon the average of the high and low prices for the Registrant's
common stock reported on the NASDAQ SmallCap Market on March 23, 2000
for purposes of computing the registration fee in accordance with Rules
457(c) and 457(h) under the Securities Act of 1933, as amended.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information required by Part I (plan
information and registrant information) will be sent or given to employees as
specified by Rule 428(b)(1). Such documents need not be filed with the
Securities and Exchange Commission either as part of this registration statement
or as prospectuses or prospectus supplements pursuant to Rule 424. These
documents and the documents incorporated by reference in the registration
statement pursuant to Item 3 of Part II of this Form, taken together, constitute
a prospectus that meets the requirements of Section 10(a) of the Securities Act
of 1933, as amended.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by Biomerica, Inc. (the "Registrant")
with the Securities and Exchange Commission (the "Commission") are incorporated
in and made part of this registration statement by reference, except to the
extent that any statement or information therein is modified, superseded or
replaced by a statement or information contained in any other subsequently filed
document incorporated herein by reference.
(1) The Registrant's Annual Report on Form 10-KSB for the fiscal
year ended May 31, 1999.
(2) Amendment to the Registrant's Annual Report filed on Form
10-KSB/A for the Registrant's fiscal year ended May 31, 1999.
(3) The Registrant's Quarterly Reports on Form 10-QSB for the
quarters ended August 31, 1999 and November 30, 1999.
(4) The Registrant's Proxy Statement dated September 27, 1999 for
the Registrant's Annual Meeting of Stockholders held on
October 25, 1999.
(5) The description of the Registrant's common stock, $.08 par
value ("Common Stock") filed with the Commission on September
16, 1999 (File No. 333-87231) describing the Common Stock
referred to herein, including any amendment or report filed to
update the description.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, subsequent to the
filing hereof and 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 and to be a
part hereof from the date of filing such documents.
For purposes of this registration statement, any document or any
statement contained in a document incorporated or deemed to be incorporated
herein by reference shall be deemed to be modified or superseded to the extent
that a subsequently filed document or statement contained herein or in any other
subsequently filed document which also is or is deemed to be incorporated herein
by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except as
so modified or superseded, to constitute a part of this registration statement.
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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 (the "Delaware
GCL") empowers a Delaware corporation, including the Registrant, to indemnify
its directors, officers, employees, and agents under certain circumstances. The
Registrant's Certificate of Incorporation (the "Certificate") provides that the
Registrant shall indemnify directors and officers, and may indemnify employees
and agents, to the full extent authorized by law. The Certificate further
provides that the Registrant may purchase and maintain liability insurance on
behalf of directors, officers, employees or agents of the Registrant, whether or
not the Registrant would have the power to indemnify them against such liability
under the provisions of the Delaware GCL. Moreover, the Certificate provides
that no director of the Registrant shall be personally liable to the Registrant
or its stockholders for monetary damages for any breach of fiduciary duty as a
director, except (i) for any breach of the duty of loyalty to the Registrant or
its stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) for liability under
Section 174 of the Delaware GCL (involving certain unlawful dividends or stock
repurchases), or (iv) for any transaction from which the director derived an
improper personal benefit.
Under the Delaware GCL, to the extent that an officer or director of a
corporation is successful on the merits in the defense of an action, the
corporation must indemnify such person for his or her actual and reasonable
expenses incurred in connection with such defense. The Certificate provides that
the Registrant shall pay the expenses of an indemnifiable person in defending a
proceeding in advance of the final disposition; but under the Delaware GCL such
advancement of expenses may be made to a director or officer only if such person
provides an undertaking to reimburse the Registrant if it is ultimately
determined that such person is not entitled to be indemnified against such
expenses. The Certificate provides that if a claimant to an indemnification
payment is not paid in full by the Registrant within 30 days after the
Registrant has received a written claim, the claimant may bring suit against the
Registrant to recover the unpaid amount and if successful in whole or in part,
the claimant shall be entitled to be paid the expenses of prosecuting such
claim. However, with the exception of such claims to indemnification payments as
noted above, the Registrant shall not indemnify any director or officer seeking
indemnification in connection with a proceeding initiated by such person unless
such proceeding was authorized by the Registrant's Board of Directors.
2
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Under its Bylaws, the Registrant is required to indemnify its directors
and officers against expenses and other liabilities if such person acted in good
faith and for a purpose he or she reasonably believed to be in the best
interests of the corporation and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful;
provided, however, that if the action or proceeding is by or in the right of the
Registrant, indemnification shall not be made in respect of any matter as to
which such person shall have been adjudged to be liable to the Registrant for
negligence or misconduct in the performance of his or her duty to the
Registrant.
The Registrant maintains officers and directors liability insurance
policy insuring the Registrant's officers and directors against certain
liabilities and expenses incurred by them in their capacities as such.
Item 7. Exemption from Registration Claimed
Not Applicable.
Item 8. Exhibits
4.1 Form of Stock Certificate (incorporated by reference to Exhibit 4.1
filed with the Registration Statement on Form SB-2 filed with the
Commission on September 16, 1999, Commission File No. 333-87231).
5.1 Opinion of Jeffers, Shaff & Falk, LLP
10.1 Biomerica, Inc. 1999 Stock Incentive Plan (incorporated by reference to
Exhibit B filed with the Registrant's Proxy Statement for the 1999
Annual Meeting of Stockholders on September 13, 1999).
23.1 Consent of Jeffers, Shaff & Falk, LLP (included in Exhibit 5.1)
23.2 Consent of BDO Seidman, LLP.
23.3 Consent of Corbin & Wertz.
Item 9. Undertakings
(a) The Registrant hereby undertakes to file, during any period in
which offers or sales are being made of the securities registered hereby, 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 "Securities Act");
(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 this 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;
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Provided, however, that paragraphs (a)(i) and (a)(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 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.
(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 the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(c) The Registrant hereby undertakes to remove from registration by
means of a post-effective amendment any of the securities being registered that
remain unsold at the termination of the offering;
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, 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 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.
4
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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 Newport Beach, and State of California on March 27,
2000.
BIOMERICA, INC.
By: /S/ ZACKARY S. IRANI
----------------------------
Zackary S. Irani, President
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below by the following persons in the capacities and
on the dates indicated:
/s/ Zackary S. Irani Chairman of the March 27, 2000
- ------------------------------------- Board, Chief
Zackary S. Irani Executive Officer
/s/ Janet Moore Director, March 27, 2000
- ------------------------------------- Chief Financial Officer
Janet Moore & Secretary
/s/ Dr. Francis Cano Director March 27, 2000
- -------------------------------------
Dr. Francis Cano
/s/ Dr. Robert Orlando Director March 27, 2000
- -------------------------------------
Dr. Robert Orlando, M.D., Ph.D.
/s/ Dr. Carlos St. Aubyn Beharie Director March 27, 2000
- -------------------------------------
Dr. Carlos St. Aubyn Beharie, M.D.
/s/ Allen Barbieri Director March 27, 2000
- -------------------------------------
Allen Barbieri
/s/ David Burrows Director March 27, 2000
- -------------------------------------
David Burrows
5
JEFFERS, SHAFF & FALK, LLP
ATTORNEYS AT LAW
18881 VON KARMAN AVENUE
SUITE 1400
IRVINE, CALIFORNIA 92612
TELEPHONE: (949) 660-7700
FACSIMILE: (949) 660-7799
March 28, 2000
Biomerica, Inc.
1533 Monrovia Avenue
Newport Beach, California 92663
Attention: Zackary S. Irani
Re: Issuance of Shares Pursuant to S-8 Registration Statement
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Dear Mr. Irani:
This letter relates to the issuance of up to 1,000,000 shares of common
stock, $.08 par value (the "Shares"), of Biomerica, Inc., a Delaware corporation
(the "Company") registered pursuant to that Registration Statement on Form S-8,
filed with the Securities and Exchange Commission on March 28, 2000 (the
"Registration Statement"). You have requested that we deliver to you an opinion
as to whether the Shares will have been duly authorized, validly issued, and,
when issued, will be fully paid and non-assessable shares of common stock of the
Company. We have also examined the Certificate of Incorporation, as amended, and
such other corporate records, including the resolutions of the Company's Board
of Directors, and such other documents as we have deemed necessary in order to
express the opinion set forth below. In our examination we have assumed the
genuineness of all signatures and the authenticity of all documents submitted to
us as originals and the conformity of all originals of all documents submitted
to us as copies. As to questions of fact material to such opinion, we have
relied upon statements and representations of the Company.
Our opinion is based on existing law that is subject to change either
prospectively or retroactively. Relevant laws could change in a manner that
could adversely affect the Company or its stockholders. We have no obligation to
inform the Company of any such change in the law. We have not been requested to
opine, and we have not opined, as to any issues other than those expressly set
forth herein. This opinion extends only to questions relating to the validity of
the Shares offered and sold under the Registration Statement. We express no
opinion with respect to any other issue.
We are admitted to practice law in the State of California and our
opinion is limited to federal law and the corporate laws of the State of
California and the State of Delaware that affect such opinion. We express no
opinion with respect to any other law or the laws of any other jurisdiction.
Assuming the Shares are issued and paid for in accordance with the
terms of the offering described in the Registration Statement, including
documents incorporated by reference thereto, and when certificates representing
such Shares have been issued to the purchasers, based on the foregoing, we are
of the opinion that the Shares will have been duly authorized, validly issued,
and will be fully paid and non-assessable shares of common stock of the Company.
<PAGE>
Biomerica, Inc.
March 28, 2000
Page 2
For purposes of rendering this opinion we have made such legal and
factual inquiries as we have deemed necessary under the circumstances. Although
we have not independently verified all of the facts relied upon for purposes
hereof, nothing has come to our attention that has led us to believe that the
facts are other than as stated herein or that there exist other material facts
not considered.
Our Opinion contained herein is solely for the benefit of the Company
and may be relied upon by the Company only in connection with the Registration
Statement. In this regard, we hereby consent to the filing of this opinion,
including this consent, as an exhibit to the Registration Statement.
Very truly yours,
/s/ Jeffers, Shaff & Falk, LLP
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Biomerica, Inc. and Subsidiaries
Newport Beach, California
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated July 29,
1999, relating to the consolidated financial statements of Biomerica, Inc. and
Subsidiaries appearing in the Company's Annual Report on Form 10-KSB for the
year ended May 31, 1999.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
/S/ BDO SEIDMAN, LLP
BDO SEIDMAN, LLP
Costa Mesa, California
March 21, 2000
================================================================================
CORBIN & WERTZ
A COMPANY OF PROFESSIONAL SERVICES
CONSENT OF INDEPENDENT AUDITORS
Board of Directors
Biomerica, Inc. and subsidiaries
We hereby consent to the incorporation by reference in this Registration
Statement of Biomerica, Inc. (the "Company") on Form S-8 of our report dated
July 24, 1998, on our audit of the consolidated financial statements of the
Company for the year ended May 31, 1998, which report is included in the
Company's Annual Report on Form 10-KSB (File No. 000-08765) for the year ended
May 31, 1999. We also consent to the use of our name as it appears under the
caption "Experts."
/S/ CORBIN & WERTZ
CORBIN & WERTZ
Irvine, California
March 23, 2000
