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As Filed with the Securities and Exchange Commission on August 27, 1996
Registration Number 33-25647-D
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ADVANCED BIOLOGICAL SYSTEMS, INC.
(Exact name of registrant as specified in its charter)
Delaware 87-0462198
(State or other (I.R.S. Employer
jurisdiction Identification Number)
of incorporation
or organization)
2936 Sierra Point Plaza
Salt Lake City, Utah 84109
Telephone: 801-521-8000
(Address of principal executive offices)
Advanced Biological Systems, Inc.
1996 Non-Statutory Stock Option Plan
(Full title of the Plan)
Gary B. Wolff, P.C.
747 Third Avenue
New York, New York 10017
Telephone: (212) 644-6446
(Name, address and telephone number of agent for service.)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Proposed
securities maximum maximum Amount of
to be Amount to be offering price aggregate registration
registered registered per share offering price fee
<S> <C> <C> <C> <C>
Common Stock
$.0001 par value 1,000,000 $.50 $500,000 $172.42
</TABLE>
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference
The following documents are incorporated by reference in the registration
statement:
(a) The registrant's latest annual report on Form 10-KSB.
(b) All other reports filed by the registrant pursuant to sections
13(a) or 15(d) of the Securities Exchange Act of 1934 since
the end of the year covered by the Form 10-KSB referred to in
(a) above.
(c) Not Applicable.
All documents subsequently filed by the 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 to the registration statement which indicates that
all of the shares of common stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by
reference in the registration statement and to be a part hereof from the date of
filing of such documents. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this registration statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
registration statement.
Item 4. Description of Securities.
The registrant is authorized to issue Ten Million (10,000,000) shares of Common
Stock. The par value of each of said shares is $.0001. All such shares are of
one class, which shares of Common Stock has full voting and dividend rights but
without cumulative voting rights or any pre-emptive rights.
Item 5. Interest of Named Experts and Counsel.
Not Applicable
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware Corporation Law of the State of Delaware contains
provisions entitling directors and officers of the registrant to indemnification
from judgments, fines, amounts paid in settlement and reasonable expenses,
including attorney's fees, as the result of an action or proceeding in which
they may be involved by reason of being or having been a director or officer of
the registrant provided said officers or directors acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Additionally, Articles
"VIII" and "IX" of the registrant's Articles of Incorporation entitled
"Limitation on Directors Liability" and "Indemnification" respectively, as
originally filed with the Delaware Secretary of State on October 3, 1988 contain
various provisions applicable hereto and reading as follows:
"ARTICLE VIII - LIMITATION ON DIRECTORS LIABILITY
A director of the Corporation shall not be personally liable to the
Corporation or its stockholders for monetary damages for breach of
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fiduciary duty as a director, except for liability (i) for any breach
of the director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii)
under section 174 of the Delaware General Corporation Law, or (iv) for
any transaction from which the director derived any improper personal
benefit. If the Delaware General Corporation Law is amended after
approval by the stockholders of this article to authorize corporate
action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be
eliminated to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of
such repeal or modification."
"ARTICLE IX - INDEMNIFICATION
(a) Right to Indemnification. Each person who was or is made a party or
is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that
he or she is or was a director, officer or employee of the Corporation
or is or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with
respect to employee benefit plans (hereinafter an "indemnitee"),
whether the basis of such proceeding is alleged action in an official
capacity as a director, officer, employee or agent or in any other
capacity while serving as a director, officer, employee or agent, shall
be indemnified and held harmless by the Corporation to the fullest
extent authorized by the Delaware General Corporation Law, as the same
exists or may hereafter be amended (but, in the case of any such
amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights that such law
permitted the Corporation to provide prior to such amendment), against
all expense, liability and loss (including attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts paid in settlement)
reasonably incurred or suffered by such indemnitee in connection
therewith and such indemnification shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the indemnitee's heirs, executors and
administrators; provided, however, that, except as provided in
paragraph (b) hereof with respect to proceedings to enforce rights to
indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such
indemnitee only if such proceeding (or part thereof) was authorized by
the Board of Directors of the Corporation. The right to indemnification
conferred in this Article shall be a contract right and shall include
the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition
(hereinafter an "advancement of expenses"); provided, however, that, if
the Delaware General Corporation Law requires, an advancement of
expenses incurred by an indemnitee in his or her capacity as a director
or officer (and not in any other capacity in which service was or is
rendered by such indemnitee, including, without limitation, service to
an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking, by or on behalf of such indemnitee, to
repay all amounts so advanced if it shall ultimately be determined by
final judicial decision from which there is no further right to appeal
that such indemnitee is not entitled to be indemnified for such
expenses under this Article or otherwise (hereinafter an
"undertaking").
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(b) Right of Indemnitee to Bring Suit. If a claim under paragraph (a)
of this Article is not paid in full by the Corporation within sixty
days after a written claim has been received by the Corporation, except
in the case of a claim for an advancement of expenses, in which case
the applicable period shall be twenty days, the indemnitee may at any
time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim. If successful in whole or in part in any
such suit or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking, the
indemnitee shall be entitled to be paid also the expense of prosecuting
or defending such suit. In (i) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought
by the indemnitee to enforce a right to an advancement of expenses) it
shall be a defense that, and (ii) any suit by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking the Corporation shall be entitled to recover such expenses
upon a final adjudication that, the indemnitee has not met the
applicable standard of conduct set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including its
Board of Directors, independent legal counsel, or its stockholders) to
have made a determination prior to the commencement of such suit that
indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standards of conduct set
forth in the Delaware General Corporation Law, nor an actual
determination by the Corporation (including its Board of Directors,
independent legal counsel, or its stockholders) that the indemnitee has
not met such applicable standard of conduct, shall create a presumption
that the indemnitee has not met the applicable standard of conduct or,
in the case of such a suit brought by the indemnitee, be a defense to
such suit. In any suit brought by the indemnitee to enforce a right
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified or to such advancement of
expenses under this Article or otherwise shall be on the Corporation.
(c) Non-Exclusivity of Rights. The rights to indemnification and to the
advancement of expenses conferred in this Article shall not be
exclusive of any other rights which any persons may have or hereafter
acquire under any statute, this Certificate of Incorporation, bylaws,
agreement, vote of stockholders or disinterest directors or otherwise.
(d) Insurance. The Corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture, trust
or other enterprise against any expense, liability or loss, whether or
not the Corporation would have the power to indemnify such person
against such expense, liability or loss under the Delaware General
Corporation Law.
(e) Indemnification of Agents of the Corporation. The Corporation may,
to the extent authorized from time to time by the Board of Directors,
grant rights to indemnification and to the advancement of expenses, to
any agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of
expenses of directors, officers and employees of the Corporation.
Item 7. Exemption from Registration Claimed.
Not applicable
Item 8. Exhibits.
The exhibits to the registration statement are listed in the Exhibit Index
elsewhere herein.
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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 thereto) which, individually or in the
aggregate, represents a fundamental change in the
information set forth in the registration statement;
and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement;
Provided, however, that paragraph (a)(1)(i) and (a)(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 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
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to deliver or cause to
be delivered with the prospectus, to each person to whom the prospectus
is sent or given, the latest annual report to security holders that is
incorporated by reference in the prospectus and furnished pursuant to
and meeting the requirements of Rule 14a-3 or Rule 124c-3 under the
Securities Exchange Act of 1934; and, where interim financial
information required to be presented by Article 3 of Regulation S-X is
not set forth in the prospectus, to deliver, or cause to be delivered
to each person to whom the prospectus is sent or given, the latest
quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
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(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 in Item 6, 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
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 or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in City of Salt Lake City, State of Utah on August
21, 1996.
Advanced Biological Systems, Inc.
/Emanuel A. Floor/
By: Emanuel A. Floor, President
Pursuant to the requirements of the Securities Act of 1933, this registration
statement or amendment thereto has been signed by the following persons in the
capacities and on the dates indicated.
Name Date
/Emanuel A. Floor/ Aug. 21, 1996
- ------------------------------------------
Emanuel A. Floor, President and a Director
/Oleg Batratchenko/ Aug. 23, 1996
- ------------------------------------------
Oleg Batratchenko, Secretary-Treasurer
and Director
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<TABLE>
<CAPTION>
Page in Sequential
Exhibit Index. Number System
<S> <C> <C>
(1) Not Applicable
(2) Not Applicable
(3) Not Applicable
(4) Not Applicable
(5) Consent and Opinion of Gary B. Wolff, P.C., 747 Third
Avenue, New York, New York 10017 regarding legality
of securities registered under this Registration
Statement and to the references to such attorney
in the Registration Statement on Form S-8 9
(6) Not Applicable
(7) Not Applicable
(8) Not Applicable
(9) Not Applicable
(10) Not Applicable
(11) Not Applicable
(12) Not Applicable
(13) Not Applicable
(14) Not Applicable
(15) Not Applicable
(16) Not Applicable
(17) Not Applicable
(18) Not Applicable
(19) Not Applicable
(20) Not Applicable
(21) Not Applicable
(22) Not Applicable
(23) Consent of Jones, Jensen & Company, Certified Public
Accountants for the Company for years ended
December 31, 1995 and 1994 10
(24) Not Applicable
(25) Not Applicable
(26) Not Applicable
(27) Not Applicable
(28) Not Applicable
(99) Not Applicable
</TABLE>
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[GARY B. WOLFF, P.C. LETTERHEAD]
August 23, 1996
CONSENT AND OPINION OF COUNSEL
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549-1004
Gentlemen:
I am securities counsel to Advanced Biological Systems, Inc., a Delaware
corporation (the "Company"). I have, in such capacity, examined and am familiar
with the Articles of Organization, as amended, and the By-laws of the Company,
and have examined the records of corporate proceedings. I have also examined and
am familiar with such other documents as I have considered necessary for
rendering my opinion hereinafter set forth.
Based upon the foregoing, I am of the opinion that the shares of Common Stock,
$.0001 par value, of the Company reserved for issuance under the Advanced
Biological Systems, Inc. 1996 Non-Statutory Stock Option Plan dated August ,
1996, will, when issued in accordance with the terms of such plan, be legally
issued, fully paid and nonassessable.
In addition, I hereby consent to the use of our name in the above opinion filed
with the Registration Statement on Form S-8.
Very truly yours,
/s/ Gary B. Wolff
Gary B. Wolff
GBW:th
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[JONES, JENSEN & COMPANY LETTERHEAD]
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the use of our report dated April 8, 1996 on our audit of the
financial statements of Advanced Biological Systems, Inc. as of December 31,
1995 and 1994, (and to all references to our firm) included in the Form 10-KSB
and incorporated by reference in the Form S-8 registration statement of Advanced
Biological Systems, Inc.
/Jones Jensen & Company/
Jones, Jensen & Company
August 20, 1996
