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As filed with the Securities and Exchange Commission on May 9, 1997.
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
Biosite Diagnostics Incorporated
(Exact name of registrant as specified in its charter)
Delaware 33-0288606
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
11030 Roselle Street
San Diego, California 92121
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(Address of Principal (Zip Code)
Executive Offices)
AMENDED AND RESTATED 1989 STOCK PLAN OF BIOSITE DIAGNOSTICS INCORPORATED
1996 STOCK INCENTIVE PLAN OF BIOSITE DIAGNOSTICS INCORPORATED
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(Full title of the plans)
Copy to:
KIM D. BLICKENSTAFF THOMAS E. SPARKS, JR.
Biosite Diagnostics Incorporated Pillsbury Madison & Sutro LLP
11030 Roselle Street P.O. Box 7880
San Diego, California 92121 San Francisco, CA 94120-7880
(619) 455-4808 (415) 983-1000
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(Name, address and telephone
number, including area code,
of agent for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed Maximum Proposed Amount of
Securities To To Be Offering Price Maximum Aggregate Registration
Be Registered Registered per Share(1) Offering Price(1) Fee
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<S> <C> <C> <C> <C>
Common Stock, 2,016,486 shares $8.625 $17,392,191.75 $5,271
par value $.01
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</TABLE>
(1) Estimated solely for the purpose of computing the registration fee
pursuant to Rule 457(h) and 457(c), upon the average of the high and
low sales prices as reported on the Nasdaq National Market on May 2,
1997.
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The Registration Statement shall become effective upon filing in
accordance with Rule 462 under the Securities Act of 1933.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual
Information.*
* Information required by Part I to be contained in the Section 10(a)
prospectus is omitted from this Registration Statement in accordance
with Rule 428 under the Securities act of 1933 and the Note to Part I
of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
The following documents filed by Registrant with the
Securities and Exchange Commission are incorporated by reference in this
registration statement:
(1) Registrant's Annual Report on Form 10-K (File No.
000-21873) for the fiscal year ended December 31, 1996 which contains, among
other things, the financial statements of the Registrant and certain
supplementary data for the fiscal year ended December 31, 1996, together with
the report thereon of Ernst & Young LLP, independent auditors.
(2) Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1997.
(3) The description of Registrant's Common Stock contained in
Registrant's Registration Statement on Form 8-A, filed February 10, 1997.
In addition, all documents subsequently filed by Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, 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.
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Item 5. Interests of Named Experts and Counsel.
The financial statements of Biosite Diagnostics Incorporated
incorporated by reference in this registration statement have been audited by
Ernst & Young LLP, independent auditors, to the extent indicated in their report
thereon also incorporated by reference. Such financial statements have been
incorporated herein by reference in reliance upon such report given upon the
authority of said firm as experts in auditing and accounting.
A member of Pillsbury Madison & Sutro LLP participating in the
consideration of legal matters relating to the Registrant's Common Stock owns
18,360 shares of the Registrant's Common Stock.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides
for the indemnification of officers, directors, and other corporate agents in
terms sufficiently broad to indemnify such persons under certain circumstances
for liabilities (including reimbursement for expenses incurred) arising under
the Securities Act of 1933, as amended (the "Act"). Article VII of the
Registrant's Restated Certificate of Incorporation (Exhibit 3.(i)3 to the Annual
Report on Form 10-K) and Article V of the Registrant's Bylaws (Exhibit 3.(ii)2
to the Registrant's Registration Statement on Form S-1 (File No. 333-17657) (the
"Registration Statement")) provide for indemnification of the Registrant's
directors, officers, employees and other agents to the extent and under the
circumstances permitted by the Delaware General Corporation Law. The Registrant
has also entered into agreements with its directors and officers that will
require the Registrant, among other things, to indemnify them against certain
liabilities that may arise by reason of their status or service as directors or
officers to the fullest extent not prohibited by law (Exhibit 10.6 to the
Registration Statement).
The Underwriting Agreement (Exhibit 1.1 to the Registration
Statement) provides for indemnification by the Underwriters of the Registrant,
its directors and officers, and by the Registrant of the Underwriters, for
certain liabilities, including liabilities arising under the Act, and affords
certain rights of contribution with respect thereto.
Item 7. Exemption from Registration Claimed.
Not applicable.
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Item 8. Exhibits.
See Index to Exhibits.
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;
(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 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 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.
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(b) The undersigned Registrant hereby further 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 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.
(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 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 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 San Diego, State of California, on May 8, 1997.
BIOSITE DIAGNOSTICS INCORPORATED
By /s/ Kim D. Blickenstaff
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Kim D. Blickenstaff
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Kim D. Blickenstaff,
Christopher J. Twomey and S. Nicholas Stiso, and each of them his true and
lawful attorneys-in-fact and agents, each 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 to file the same, with 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, 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 his substitute or 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:
Name Title Date
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/s/ Kim D. Blickenstaff President, Chief Executive May 8, 1997
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Kim D. Blickenstaff Executive Officer) and
Director
/s/ Christopher J. Twomey Vice President and Chief May 8, 1997
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Christopher J. Twomey (Principal Financial
Officer and Accounting
Officer)
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Name Title Date
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/s/ Timothy J. Wollaeger Chairman of the Board May 8, 1997
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Timothy J. Wollaeger
/s/ Gunars E. Valkirs Director May 8, 1997
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Gunars E. Valkirs, Ph.D.
/s/ Thomas H. Adams Director May 8, 1997
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Thomas H. Adams, Ph.D.
/s/ Howard E. Greene, Jr. Director May 8, 1997
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Howard E. Greene, Jr.
/s/ Frederick J. Dotzler Director May 8, 1997
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Frederick J. Dotzler
/s/ Stephen K. Reidy Director May 8, 1997
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Stephen K. Reidy
/s/ Jesse I. Treu Director May 8, 1997
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Jesse I. Treu
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INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
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4.1* Specimen Common Stock Certificate
5.1 Opinion regarding legality of
securities to be offered.
23.1 Consent of Ernst & Young LLP,
Independent Auditors.
23.2 Consent of Pillsbury Madison &
Sutro (included in Exhibit 5.1).
24.1 Power of Attorney (see page 6).
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* Incorporated by reference to Exhibit 4.1 to Registrant's Registration
Statement on Form S-1, No. 333-17657.
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EXHIBIT 5.1
PILLSBURY MADISON & SUTRO LLP
P.O. BOX 7880
SAN FRANCISCO, CA 94120
Tel: (415) 983-1000
Fax: (415) 983-1200
May 9, 1997
Biosite Diagnostics Incorporated
11030 Roselle Street
San Diego, CA 92121
Re: Registration Statement on Form S-8
Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed by
Biosite Diagnostics Incorporated, a Delaware corporation (the "Company"), with
the Securities and Exchange Commission under the Securities Act of 1933,
relating to 2,016,486 shares of the Company's Common Stock issuable pursuant to
the Amended and Restated 1989 Stock Plan of the Company (the "1989 Plan") and
the 1996 Stock Incentive Plan of the Company (the "1996 Plan"), it is our
opinion that such shares of the Common Stock of the Company, when issued and
sold in accordance with the 1989 Plan or the 1996 Plan will be legally issued,
fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as Exhibit 5.1 to the Registration Statement.
Very truly yours,
/s/ PILLSBURY MADISON & SUTRO LLP
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Exhibit 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the Amended and Restated 1989 Stock Plan of Biosite
Diagnostics Incorporated and the 1996 Stock Incentive Plan of Biosite
Diagnostics Incorporated of our report dated February 18, 1997, with respect to
the financial statements of Biosite Diagnostics Incorporated included in its
Annual Report (Form 10-K) for the year ended December 31, 1996 as filed with the
Securities and Exchange Commission.
ERNST & YOUNG LLP
San Diego, California
May 5, 1997
