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Registration No. __________
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ABAXIS, INC.
(Exact name of registrant as specified in its charter)
California 77-0213001
(State or other jurisdiction (I.R.S. employer identification no.)
of incorporation or organization)
1320 Chesapeake Terrace
Sunnyvale, CA 94089
(Address of principal executive offices) (Zip code)
ABAXIS, INC.
1989 STOCK OPTION PLAN
(Full title of the plan)
Ting W. Lu
Vice President of Finance, Chief Financial Officer and Secretary
Abaxis, Inc.
1320 Chesapeake Terrace
Sunnyvale, CA 94089
(Name and address of agent for service)
Telephone number, including area code, of agent for service: 408/734-0200
This registration statement, including all exhibits and attachments, contains 13
pages. The exhibit index may be found on page 9 of the consecutively numbered
pages of the registration statement.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
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<TABLE>
<CAPTION>
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CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(1) price(1) fee
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
No Par Value
Common Stock 486,000 $4.50 $2,187,000.00 $754.14
</TABLE>
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(1) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. The price is based upon the average of the high and low prices
of the Common Stock on June 28, 1996 as reported on the National Association of
Securities Dealers Automated Quotations system.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Abaxis, Inc. (the "Company") hereby incorporates by reference in
this registration statement the following documents:
(a) The Company's latest annual report on Form 10-K filed pursuant
to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), containing audited financial statements for the Company's
latest fiscal year.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the registrant
document referred to in (a) above.
(c) The description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act,
including any amendment or report filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of
a post-effective amendment to this registration statement which indicates that
all securities offered hereby have been sold or which deregisters all securities
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
The class of securities to be offered is registered under Section
12 of the Exchange Act.
Item 5. Interests of Named Experts and Counsel
Not applicable.
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Item 6. Indemnification of Directors and Officers
The Company's Restated Articles of Incorporation provide that the
liability of the directors for monetary damages shall be eliminated to the
fullest extent permissible under California law. Pursuant to California law, the
Company's directors shall not be liable for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its shareholders. However,
this provision does not eliminate the duty of care, and in appropriate
circumstances, equitable remedies such as injunctive or other forms of
non-monetary relief will remain available under California law. In addition,
each director will continue to be subject to liability for (i) acts or omissions
that involve intentional misconduct or a knowing and culpable violation of law,
(ii) acts or omissions that a director believes to be contrary to the best
interests of the Company or its shareholders or that involve the absence of good
faith on the part of the director, (iii) any transaction from which a director
derived an improper personal benefit, (iv) acts or omissions that show a
reckless disregard for the director's duty to the Company or its shareholders in
circumstances in which the director was aware, or should have been aware, in the
ordinary course of performing a director's duties, of a risk of serious injury
to the Company or its shareholders, (v) acts or omissions that constitute an
unexcused pattern of inattention that amounts to an abdication of the director's
duty to the Company or its shareholders, (vi) any transaction that constitutes
an illegal distribution or dividend under California law, and (vii) any
transaction involving an unlawful conflict of interest between the director and
the Company under California law. The provision also does not affect a
director's responsibilities under any other law, such as the federal securities
laws or state or federal environmental laws.
In addition, the Company's Restated Articles of Incorporation
provide that the Company is authorized to provide indemnification of agents for
breach of duty to the Company and its shareholders through bylaw provisions or
through agreements with the agents, or through shareholder resolutions, or
otherwise, in excess of the indemnification otherwise permitted by California
law, subject to the limits on such excess indemnification set forth in
California law.
The Company's Bylaws provide that the Company will indemnify its
directors and executive officers and may indemnify its other officers, employees
and other agents to the fullest extent permitted by California law. Such
indemnification is intended to provide the full flexibility available under
California law and may, under certain circumstances, include indemnification for
negligence, gross negligence and certain types of recklessness. Under California
law and the Company's Bylaws, the Company will be permitted to indemnify its
directors, executive officers, officers, employees and other agents, within the
limits established by law and public policy, pursuant to an express contract,
bylaw provision, shareholder vote or otherwise, any or all of which could
provide indemnification rights broader than those expressly available under
California law.
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The Company is also empowered under its Bylaws to enter into
indemnification contracts with its directors and officers and to purchase
insurance on behalf of any person whom it is required or permitted to indemnify.
The Company has entered into agreements with its directors and certain of its
executive officers that require the Company to indemnify such persons against
expenses, judgments, fines, settlements and other amounts actually and
reasonably incurred (including expenses of a derivative action) in connection
with any proceeding, whether actual or threatened, to which any such person may
be made a party by reason of the fact that such person is or was a director or
an executive officer of the Company or any of its affiliated enterprises,
provided such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Company and, with
respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The indemnification agreements also set forth certain
procedures that will apply in the event of a claim for indemnification
thereunder.
Section 317 of the California Corporations Code makes provisions
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 of expenses incurred) arising under the
Securities Act of 1933, as amended (the "Securities Act"). Section 317 also
provides that the indemnification provided by this section is not exclusive to
the extent additional rights are authorized in a corporation's articles of
incorporation.
Item 7. Exemption From Registration Claimed
Inapplicable.
Item 8. Exhibits
See Exhibit Index.
Item 9. Undertakings
(a) Rule 415 Offering
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;
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(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)(l)(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 Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose 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.
(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) Filing incorporating subsequent Exchange Act documents by
reference
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
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.
(h) Request for acceleration of effective date or filing of
registration statement on Form S-8
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 Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In
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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.
SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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 Sunnyvale, State of California, on July 2, 1996.
ABAXIS, INC.
By: /s/ Ting W. Lu
--------------------------------------
Ting W. Lu, Vice President of
Finance, Chief Financial Officer and
Secretary
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POWER OF ATTORNEY
The officers and directors of Abaxis, Inc. whose signatures appear below, hereby
constitute and appoint Gary H. Stroy and Ting W. Lu, and each of them, their
true and lawful attorneys and agents, with full power of substitution, with
power to act alone, to sign and execute on behalf of the undersigned any
amendment or amendments to this registration statement on Form S-8, and do
hereby ratify and confirm all that each of said attorney and agent, or their or
her or his substitutes, shall do or cause to be done by virtue hereof. Pursuant
to the requirements of the Securities Act of 1933, as amended, this registration
statement has been signed by the following persons in the capacities indicated
on July 2, 1996.
<TABLE>
<CAPTION>
Signature Title
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<S> <C>
/s/ Gary H. Stroy
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Gary H. Stroy Chairman of the Board of Directors
/s/ Clinton H. Severson
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Clinton H. Severson President, Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Ting W. Lu
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Ting W. Lu Vice President of Finance, Chief Financial Officer
and Secretary (Principal Financial and Accounting
Officer)
/s/ Richard Bastiani, Ph.D.
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Richard Bastiani, Ph.D. Director
/s/ Robert Kunze
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Robert Kunze Director
/s/ Prithipal Singh, Ph.D.
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Prithipal Singh, Ph.D. Director
/s/ Ernest S. Tucker, III, M.D.
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Ernest S. Tucker, III, M.D. Director
</TABLE>
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EXHIBIT INDEX
Sequentially
Numbered Page
-------------
4.1 Restated Articles of Incorporation of the --
Company dated January 30, 1992, is
incorporated by reference to Exhibit 3.1 to the
Company's Registration Statement on Form S-1
filed with the Securities and Exchange
Commission (No. 33-83852, filed September
19, 1994)
4.2 Bylaws of the Company is incorporated by reference to --
Exhibit 3.2 to the Company's Registration Statement on
Form S-1 filed with the Securities and Exchange
Commission (No. 33-83852, filed September 19, 1994)
5 Opinion re legality 10
23.1 Consent of Counsel (included in Exhibit 5) --
23.2 Consent of Deloitte & Touche LLP 12
23.3 Consent of Ernst & Young LLP 13
24 Power of Attorney (included in signature pages --
to this registration statement)
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[GRAY CARY WARE FREIDENRICH LETTERHEAD]
ATTORNEYS AT LAW
400 HAMILTON AVENUE
PALO ALTO, CA 94301-1825
TEL (415) 328-6561
FAX (415) 327-3699
EXHIBIT 5
OUR FILE NO.
1010441-900301
July 2, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
RE: ABAXIS, INC.
REGISTRATION STATEMENT ON FORM S-8 REGISTERING SHARES ISSUABLE UNDER
THE 1989 STOCK OPTION PLAN
Ladies and Gentlemen:
As legal counsel for Abaxis, Inc., a California corporation (the
"Company"), we are rendering this opinion in connection with the registration
under the Securities Act of 1933, as amended, of up to 486,000 shares of the
Common Stock, without par value, of the Company which may be issued pursuant to
the exercise of options granted under the Abaxis, Inc. 1989 Stock Option Plan
(the "Plan").
We have examined all instruments, documents and records which we
deemed relevant and necessary for the basis of our opinion hereinafter
expressed. In such examination, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to the originals of all documents submitted to us as copies.
We are admitted to practice only in the State of California and we
express no opinion concerning any law other than the law of the State of
California and the federal law of the United States.
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Securities and Exchange Commission
Page 2
Based on such examination, we are of the opinion that the 486,000
shares of Common Stock which may be issued upon exercise of options granted
under the Plan are duly authorized shares of the Company's Common Stock, and,
when issued against payment of the purchase price therefor in accordance with
the provisions of the Plan, will be validly issued, fully paid and
non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and the use of our name wherever it
appears in said Registration Statement.
Respectfully submitted,
/s/ Gray Cary Ware & Freidenrich
GRAY CARY WARE & FREIDENRICH
A Professional Corporation
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EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Abaxis, Inc. on Form S-8 of our report dated April 23, 1996, appearing in the
Annual Report on Form 10-K of Abaxis, Inc. for the year ended March 31, 1996.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
San Jose, California
June 26, 1996
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Exhibit 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1989 Stock Option Plan of Abaxis, Inc. of our report
dated April 21, 1995, with respect to the financial statements of Abaxis, Inc.
included in its Annual Report (Form 10-K) for the year ended March 31, 1996
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Jose, California
June 26, 1996
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