<PAGE> 1
As Filed with the Securities and Exchange Commission on August 13, 1999
Registration No. 333-_________
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, California 94089
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip code)
ABAXIS, INC.
1998 STOCK OPTION PLAN
- --------------------------------------------------------------------------------
(Full title of the plan)
Clinton H. Severson
President and Chief Executive Officer
Abaxis, Inc.
1320 Chesapeake Terrace
Sunnyvale, California 94089
- --------------------------------------------------------------------------------
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (408) 734-0200.
This registration statement shall hereafter become effective in accordance with
Rule 462 promulgated under the Securities Act of 1933, as amended.
1
<PAGE> 2
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------
CALCULATION OF REGISTRATION FEE
- --------------------------------------------------------------------------------------------------------
Proposed Proposed
Title of maximum maximum
Securities to Amount to be offering price aggregate Amount of
be registered(1) registered(2) per share(3) offering price(3) registration fee
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1998 Stock Option Plan
Common Stock 335,906 $2.2171 $744,737.19
664,094 $3.4375 $2,282,823.13
--------- -------------
Totals 1,000,000 $3,027,560.32 $841.66
</TABLE>
- --------
(1) The securities to be registered include options to acquire Common Stock.
(2) Pursuant to Rule 416(a), this registration statement also covers any
additional securities that may be offered or issued in connection with any stock
split, stock dividend or similar transaction.
(3) Estimated pursuant to Rule 457 solely for purposes of calculating the
registration fee. As to shares subject to outstanding but unexercised options
under the 1998 Stock Option Plan, the price is computed on the basis of the
weighted average exercise price. As to the remaining shares under the 1998 Stock
Option Plan, the price is based upon the average of the high and low prices of
the Common Stock on August 10, 1999 as reported on the Nasdaq National Market.
2
<PAGE> 3
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 ended March 31, 1999 as filed with the Securities
and Exchange Commission on June 29, 1999.
(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 on December 11, 1991
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
Inapplicable.
Item 6. Indemnification of Directors and Officers
The Company's 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
nonmonetary relief will remain available under California law.
3
<PAGE> 4
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 Articles of Incorporation provide
that the Company is authorized to provide indemnification of agents (as defined
under California law) 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.
The Company is also empowered under its Bylaws to enter into
indemnification agreements 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.
4
<PAGE> 5
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
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;
(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; 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;
provided, however, that paragraphs (1)(i) and (l)(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 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.
5
<PAGE> 6
(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.
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.
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
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.
6
<PAGE> 7
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 August 12,
1999.
ABAXIS, INC.
By: /s/ Donald J. Stewart
-------------------------------
Donald J. Stewart
Vice President, Finance and
Administration, Chief Financial
Officer and Secretary
7
<PAGE> 8
SIGNATURES AND POWER OF ATTORNEY
The officers and directors of Abaxis, Inc. whose signatures appear
below, hereby constitute and appoint Clinton H. Severson and Donald J. Stewart,
and each of them, their true and lawful attorneys-in-fact and agents, with full
power of substitution, each 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 each of the undersigned does hereby ratify and
confirm all that each of said attorney-in-fact and agent, or their 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 and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
President, Chief Executive Officer
/s/ Clinton H. Severson and Chairman of the Board August 12, 1999
- ------------------------- (Principal Executive Officer)
Clinton H. Severson
Vice President, Finance and
/s/ Donald J. Stewart Administration, Chief Financial August 12, 1999
- ------------------------- Officer and Secretary
Donald J. Stewart (Principal Financial and Accounting
Officer
/s/ Richard Bastiani Director August 10, 1999
- -------------------------
Richard Bastiani, Ph.D.
/s/ Brenton G. A. Hanlon Director August 10, 1999
- -------------------------
Brenton G. A. Hanlon
/s/ Prithipal Singh Director August 10, 1999
- -------------------------
Prithipal Singh, Ph.D.
/s/ Ernest S. Tucker III Director August 10, 1999
- -------------------------
Ernest S. Tucker III, M.D.
</TABLE>
8
<PAGE> 9
EXHIBIT INDEX
<TABLE>
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company dated
January 30, 1992 is incorporated by reference to Exhibit 3.1 to the
Company' Registration Statement on Form S-1 filed with the Securities
and Exchange Commission on September 19, 1994 (File No. 33-83852)
4.2 Certificate of Amendment of Incorporation of the Company incorporated
by reference to the Company's quarterly report on Form 10-Q filed with
the Securities and Exchange Commission on February 14, 1997 (File
No.000-19720)
4.3 Certificate of Determination of the Company incorporated by reference
to the Company's quarterly report on Form 10-Q filed with the
Securities and Exchange Commission on August 14, 1997 (File
No.000-19720)
4.4 Certificate of Determination of the Company incorporated by reference
to the Company's Registration Statement on Form S-3 filed with the
Securities and Exchange Commission on September 29, 1997 (File
No.333-36705)
4.5 Bylaws of the Company are incorporated by reference to an Exhibit to
the Company's Registration Statement on Form S-1 filed with the
Securities and Exchange Commission on December 11, 1991 (File No.
33-44326)
5 Opinion of legality
23.1 Consent of Counsel (included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
24 Power of Attorney (included in signature pages to this registration
statement)
</TABLE>
9
<PAGE> 1
EXHIBIT 5
[LETTERHEAD OF GRAY CARY WARE & FREIDENRICH LLP]
400 Hamilton Avenue, Palo Alto, CA 94301-1825
Phone: 650-833-2000 Fax: 650-327-3699 www.graycary.com
August 12, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
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 1,000,000 shares of the Common
Stock, without par value, of the Company which may be issued pursuant to the
terms of the Company's 1998 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.
Based on such examination, we are of the opinion that the 1,000,000 shares of
Common Stock which may be issued under the Plan are duly authorized shares of
the Company's Common Stock, and, when issued against receipt of the
consideration therefor in accordance with the provisions of the Plan will be
validly issued, fully paid and nonassessable. 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 LLP
GRAY CARY WARE & FREIDENRICH LLP
<PAGE> 1
EXHIBIT 23.2
CONSENT OF DELOITTE & TOUCHE LLP
We consent to the incorporation by reference in this Registration Statement of
Abaxis, Inc. on Form S-8 of our reports dated April 23, 1999, appearing in the
Annual Report on Form 10-K of Abaxis, Inc. for the year ended March 31, 1999.
/s/ Deloitte & Touche LLP
San Jose, California
August 10, 1999
