As filed with the Securities and Exchange Commission on April 8, 1997
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
BOSTON BIOMEDICA, INC.
----------------------
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2652826
------------- ----------
(State or other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
375 WEST STREET, WEST BRIDGEWATER, MASSACHUSETTS 02379
------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
1987 NON-QUALIFIED STOCK OPTION PLAN
EMPLOYEE STOCK OPTION PLAN
(Full Title of the Plan)
------------------------
RICHARD T. SCHUMACHER,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BOSTON BIOMEDICA, INC.
375 WEST STREET,
WEST BRIDGEWATER, MASSACHUSETTS 02379
-------------------------------------
(Name and Address of Agent for Service)
(508) 580-1900
--------------
(Telephone Number, Including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
===================================================================================================================
Title of
Securities Amount Proposed Maxi- Proposed Maxi- Amount of
to be to be mum Offering mum Aggregate Registra-
Registered Registered Price Per Share(1) Offering Price(1) tion Fee
- ------------------------ ---------------- ----------------------------- ------------------------- -------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 1,592,725(2) $9.25(3) $14,732,706(3) $4,464.45
===================================================================================================================
</TABLE>
(footnotes on next page)
EXHIBIT INDEX AT PAGE II-5
(1) Estimated solely for the purpose of determining the registration fee
pursuant to Rule 457 under the Securities Act of 1933, as amended.
(2) Includes (i) 842,725 shares that may be issued pursuant to the 1987
Non-Qualified Stock Option Plan and (ii) 750,000 shares that may be issued
pursuant to the Employee Stock Option Plan. Such presently indeterminable number
of additional shares of Common Stock are also registered hereunder as may be
issued in the event of a merger, consolidation, reorganization,
recapitalization, stock dividend, stock split or other similar change in Common
Stock.
(3) Based on the average of the high and low prices for the Registrant's
Common Stock, $.01 par value (the "Common Stock") on April 3, 1997, as reported
by the Nasdaq Stock Market, Inc.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents are hereby incorporated by reference into this
Registration Statement:
(a) The Registrant's Final Prospectus dated October 31, 1996 in the
form filed on October 31, 1996 with the Securities and Exchange
Commission pursuant to Rule 424(b)(4) under the Securities Act
of 1933, as amended (the "1933 Act");
(b) The Registrant's Annual Report on Form 10-K for the year ended
December 31, 1996;
(c) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form 8-A (File No.
000-21615) filed under the Exchange Act with the Securities and
Exchange Commission including any amendment or report filed for
the purposes of updating such description; and
(d) The description of the Registrant's Common Stock contained in
the Registrant's Registration Statement on Form S-1 (File No.
333-10759) filed under the 1933 Act.
All documents filed by the Registrant pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date 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 by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Common Stock to be issued in accordance
with the 1987 Non-Qualified Stock Option Plan and the Employee Stock Option Plan
has been passed upon for the Registrant by Brown, Rudnick, Freed & Gesmer, One
Financial Center, Boston, Massachusetts 02111. Certain members of Brown,
Rudnick, Freed & Gesmer, P.C., a partner of Brown, Rudnick, Freed & Gesmer, are
the beneficial holders of a nominal number of shares of Common Stock of the
Registrant.
Item 6. Indemnification of Directors and Officers.
The Registrant's Amended and Restated Articles of Organization
eliminate, subject to certain exceptions, the personal liability of directors to
the Registrant or its stockholders for monetary damages for breaches of
fiduciary duties as directors. The Amended and Restated Articles do not provide
for the elimination of or any limitation on the personal liability of a director
for (i) any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) certain unauthorized
dividends, redemptions, or distributions as provided under Section 61 of the
Massachusetts Business Corporation Law, (iv) certain loans of assets of the
Registrant to any of its officers or directors as provided under Section 62 of
the Massachusetts Business Corporation Law or (v) any transaction from which the
director derived an improper personal benefit. This provision of the Amended and
Restated Articles of Organization will limit the remedies available to a
stockholder in the event of breaches of any director's duties to such
stockholder or the Registrant.
The Registrant's Amended and Restated Articles of Organization provide
that the Registrant may, either in its By-laws or by contract, provide for the
indemnification of directors, officers, employees and agents, by whomever
elected or appointed, to the full extent permitted by law, as it may be amended
from time to time.
II-1
The Registrant intends to enter into indemnification agreements with
each of its present directors and certain of its officers. The Registrant may
also enter into similar agreements with certain of the Registrant's officers who
are not also directors. Generally, the indemnification agreements provide that
the Registrant will pay certain amounts incurred by a director or officer in
connection with any civil or criminal action or proceeding and specifically
including actions by or in the name of the Registrant (derivative suits) where
the individual's involvement is by reason of the fact that he is or was a
director or officer. Such amounts include, to the maximum extent permitted by
law, attorney's fees, judgments, civil or criminal fines, settlement amounts and
other expenses customarily included in connection with legal proceedings. Under
the indemnification agreements, a director or officer will not receive
indemnification if he is found not to have acted in good faith in the reasonable
belief that his action was in the best interests of the Registrant.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
(4) Instruments defining the rights of security holders, including
indentures.
(a) Description of Certificate of Common Stock filed as
Exhibit 4.1 to the Registrant's Registration Statement
on Form S-1 (File No. 333-10759) (the "S-1 Registration
Statement").*
(b) Amended and Restated Articles of Organization of the
Registrant, filed as Exhibit 3.1 to the S-1
Registration Statement.*
(c) Amended and Restated By-Laws of the Registrant, filed
as Exhibit 3.2 to the S-1 Registration Statement.*
(5) Opinion regarding legality.
(a) Legal Opinion of Brown, Rudnick, Freed & Gesmer.
(24) Consents of experts and counsel.
(a) Consent of Coopers & Lybrand L.L.P., independent
accountants.
(b) Consent of Brown, Rudnick, Freed & Gesmer is included
within their legal opinion filed as Exhibit (5)(a)
hereof.
(25) Power of Attorney.
(99) Additional Exhibits.
(a) Boston Biomedica, Inc. 1987 Non-Qualified Stock Option
Plan filed as Exhibit 10.15 to the S-1 Registration
Statement.*
(b) Boston Biomedica, Inc. Employee Stock Option Plan filed
as Exhibit 10.16 to the S-1 Registration Statement.*
- -----------------------------
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission which
documents are hereby incorporated by reference.
II-2
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 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. 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 percent 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 (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 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.
II-3
(h) 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 provisions described under "Item 6 ---
Indemnification of Directors and Officers" above, 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 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 of 1933 and will be governed by the
final adjudication of such issue.
SIGNATURES
THE REGISTRANT
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 Bridgewater, Commonwealth of Massachusetts, on
the 7th day of April, 1997.
BOSTON BIOMEDICA, INC.
By: /s/ Richard T. Schumacher
-------------------------
Richard T. Schumacher
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:
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Richard T. Schumacher Principal Executive Officer and April 7, 1997
- ------------------------------------ Director
Richard T. Schumacher
/s/ Kevin W. Quinlan Principal Financial and Accounting April 7, 1997
- ------------------------------------ Officer and Director
Kevin W. Quinlan
/s/ Henry A. Malkasian Director April 7, 1997
- ------------------------------------
Henry A. Malkasian
/s/ Francis E. Capitanio Director April 7, 1997
- ------------------------------------
Francis E. Capitanio
/s/ Calvin A. Saravis Director April 4, 1997
- ------------------------------------
Calvin A. Saravis
</TABLE>
II-4
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Page
------ ----
<S> <C> <C>
(4)(a) Description of Certificate of Common Stock filed as Exhibit 4.1 to the *
Registrant's Registration Statement on Form S-1 (File No. 333-10759) (the
"S-1 Registration Statement").
(4)(b) Amended and Restated Articles of Organization of the Registrant, filed as *
Exhibit 3.1 to the S-1 Registration Statement.
(4)(c) Amended and Restated By-Laws of the Registrant, filed as *
Exhibit 3.2 to the S-1 Registration Statement.
(5)(a) Legal Opinion of Brown, Rudnick, Freed & Gesmer.
(24)(a) Consent of Coopers & Lybrand L.L.P., independent accountants.
(24)(b) Consent of Brown, Rudnick, Freed & Gesmer is included within their legal
opinion filed as Exhibit (5)(a) hereof.
(25) Power of Attorney.
(99)(a) Boston Biomedica, Inc. 1987 Non-Qualified Stock Option Plan *
filed as Exhibit 10.15 to the S-1 Registration Statement.
(99)(b) Boston Biomedica, Inc. Employee Stock Option Plan filed as *
Exhibit 10.16 to the S-1 Registration Statement.
</TABLE>
- ----------------------------
* Not filed herewith. In accordance with Rule 411(c) promulgated pursuant to
the Securities Act of 1933, as amended, reference is made to the documents
previously filed with the Securities and Exchange Commission which
documents are hereby incorporated by reference.
II-5
EXHIBIT (5)(a)
Opinion of Brown, Rudnick, Freed & Gesmer
April 7, 1997
Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
RE: Boston Biomedica, Inc.
Registration Statement on Form S-8
----------------------------------
Dear Ladies and Gentlemen:
We have acted as legal counsel to Boston Biomedica, Inc., a
Massachusetts corporation (the "Company"), in connection with the preparation
and filing of a Registration Statement on Form S-8 (the "Registration
Statement") with the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the "Act"), relating to an aggregate of 1,592,725 shares of
the Company's Common Stock, $.01 par value (the "Shares").
The Shares are issuable pursuant to the exercise of options granted or
to be granted pursuant to the Boston Biomedica, Inc. 1987 Non-Qualified Stock
Option Plan and the Boston Biomedica, Inc. Employee Stock Option Plan
(collectively, the "Plans").
In connection with this Opinion Letter, we have examined the documents
listed on Schedule A attached hereto (collectively, the "Documents").
We have not made any independent review or investigation of orders,
judgments, rules or other regulations or decrees by which the Company or any of
its property may be bound, nor have we made any independent investigation as to
the existence of actions, suits, investigations or proceedings, if any, pending
or threatened against the Company.
With your concurrence, the opinion hereafter expressed, whether or not
qualified by language such as "to our knowledge," is based solely upon (i) our
review of the Documents, (ii) discussions with certain officers of the Company
with respect to the Documents, (iii) discussions with those of our attorneys who
have given substantive legal representation to the Company in connection with
the Registration Statement, and (iv) such review of published sources of law as
we have deemed necessary.
This firm, in rendering legal opinions, customarily makes certain
assumptions which are described in Schedule B hereto. In the course of our
representation of the Company in connection with the Registration Statement,
nothing has come to our attention which causes us to believe reliance upon any
of those assumptions is inappropriate, and, with your concurrence, the opinion
hereafter expressed is based upon those assumptions. For purposes of those
assumptions, the Enumerated Party referred to in Schedule B is the Company.
Our opinion hereafter expressed is limited to the laws of the
Commonwealth of Massachusetts and Federal law.
We express no legal opinion upon any matter other than as explicitly
addressed in numbered paragraph 1 below, and our express opinion therein
contained shall not be interpreted to be implied opinions upon any other matter.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Shares have been duly authorized, and when issued and paid for in
accordance with the terms of the Plans, will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to this firm wherever it appears in
the Registration Statement.
Very truly yours,
BROWN, RUDNICK, FREED & GESMER
By: Brown, Rudnick, Freed &
Gesmer, P.C., a partner
By: /s/ John G. Nossiff, Jr.
----------------------------------
John G. Nossiff, Jr.,
duly authorized
SRL/JGN/JRS
SCHEDULE A
LIST OF DOCUMENTS
In connection with the Opinion Letter to which this Schedule A is
attached, we have reviewed the following Documents. However, except as
otherwise expressly indicated, we have not reviewed any documents, instruments
or agreements referred to in or listed upon any of the following Documents:
(i) the Amended and Restated Articles of Organization of the Company,
as amended, as certified by the Secretary of State of the Commonwealth of
Massachusetts and a certificate of the Clerk of the Company that there have been
no further amendments thereto;
(ii) a copy of the Amended and Restated By-laws of the Company,
certified by the Clerk of the Company as presently being in effect;
(iii) the corporate minute books or other records of the Company
pertaining to certain resolutions of the directors and the stockholders of the
Company as to the Plans and a certificate of the Clerk of the Company as to
certain resolutions of the directors of the Company;
(iv) a certificate dated as of a recent date of the Secretary of State
of the Commonwealth of Massachusetts as to the good standing of the Company;
(v) a letter dated as of a recent date from the Company's
transfer agent with respect to the number of shares of
Common Stock of the Company outstanding;
(vi) the Plans; and
(vii) the Registration Statement.
SCHEDULE B
BROWN, RUDNICK, FREED & GESMER
ASSUMPTIONS
In rendering legal opinions in third party transactions, Brown,
Rudnick, Freed & Gesmer makes certain customary assumptions described below:
1. Each natural person executing any of the Documents has sufficient
legal capacity to enter into such Documents.
2. Each person other than the Enumerated Party has all requisite
power and authority and has taken all necessary corporate or other
action to enter into the Documents to which it is a party or by
which it is bound, to the extent necessary to make the Documents
enforceable against it.
3. Each person other than the Enumerated Party has complied with all
legal requirements pertaining to its status as such status relates
to its rights to enforce the Documents against the Enumerated
Party.
4. Each Document is accurate, complete and authentic, each original
is authentic, each copy conforms to an authentic original and all
signatures are genuine.
5. All official public records are accurate, complete and properly
indexed and filed.
EXHIBIT (24)(a)
Consent of Independent Accountants
We consent to the incorporation by reference into the registration
statement on Form S-8 of our reports dated March 4, 1997, except as to Note 12,
for which the date is March 28, 1997, on our audits of the consolidated
financial statements and financial statement schedule of Boston Biomedica, Inc.
and Subsidiaries as of December 31, 1996 and 1995, and for each of the three
years in the period ended December 31, 1996, which reports are included in
Boston Biomedica Inc.'s Annual Report on Form 10-K.
/s/ COOPERS & LYBRAND L.L.P.
-----------------------------
COOPERS & LYBRAND L.L.P.
Boston, Massachusetts
April 4, 1997
EXHIBIT (25)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Richard T. Schumacher and Kevin W. Quinlan, and
each of them (with full power to each of them to act alone), 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 or all amendments (including post-effective 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 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 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
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Richard T. Schumacher Principal Executive Officer and April 7, 1997
- ------------------------------------ Director
Richard T. Schumacher
/s/ Kevin W. Quinlan Principal Financial and Accounting April 7, 1997
- ------------------------------------ Officer and Director
Kevin W. Quinlan
/s/ Henry A. Malkasian Director April 7, 1997
- ------------------------------------
Henry A. Malkasian
/s/ Francis E. Capitanio Director April 7, 1997
- ------------------------------------
Francis E. Capitanio
/s/ Calvin A. Saravis Director April 4, 1997
- ------------------------------------
Calvin A. Saravis
</TABLE>
