As filed with the Securities and Exchange Commission on December 27, 1996
Registration No.
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
AMERICAN BIO MEDICA CORPORATION
(Exact name of registrant as specified in its charter)
New York 22-3378935
---------------------------- ----------------------------
(State or other jurisdiction (IRS employer identification
of incorporation or organization) number)
102 Simons Road, Ancramdale, New York 10253
---------------------------------------- ---------
(Address of principal executive offices) (Zip code)
NONSTATUTORY STOCK OPTION PLAN
-------------------------------
(Full title of plan)
Stan Cipkowski
c/o American Bio Medica Corporation
102 Simons Road, Ancramdale, New York 10253
800-227-1243
------------
(Name, address and telephone number,
including area code, of agent for service)
Copy to:
Joel Pensley
Pensley & Fugler
2067 Broadway
New York, New York 10023
(212) 595-4955
Approximate date of commencement of proposed reoffer or resale to the
public by affiliates of the registrant:
As soon as is practicable after filing of the Registration Statement
<PAGE>
CALCULATION OF REGISTRATION FEE
===============================
- --------------------------------------------------------------------------------
Proposed Maximum
Title of each class Amount maximum aggregate Amount of
of securities to be offering price offering registration
to be registered registered per item (3) price (1) fee
- --------------------------------------------------------------------------------
Common Shares (2)
Underlying Non- 1,631,000 $3.00 $4,893,000 $1,482.72
Statutory Options Shares
Common Shares
Underlying Non-
Statutory Options 369,000 $4.13 $1,523,970 $461.81
Shares
---------
Total registration fee $1,944.53
(1) Estimated for purposes of calculating the registration fee pursuant to
Rule 457.
(2) Pursuant to Rule 457(h) of the Securities Act of 1933, as amended (the
"Securities Act"), the number of Common Shares to be registered is the maximum
number of Common Shares issuable herein, except that any additional Common
Shares issuable pursuant to stock splits, stock dividends or similar
transactions will be deemed registered by this registration statement.
(3h) Pursuant to Rules 457(c) and (h) of the Securities Act, the proposed
maximum offering price per Common Share subject to outstanding options
("Options") issued pursuant to the Company's Nonstatutory Option Plan (the
"Plan") has been calculated on the basis of the average exercise price of
outstanding Options, and the proposed maximum offering price per Common Share
available for grant under the Plan that are not subject to outstanding Options
has been calculated on the basis of the current price per Common Share.
As of December 24, 1996, there were outstanding Options to purchase
1,631,000 Common Shares pursuant to the Plan, with an exercise price of $3.00
per share. As of December 24, 1996, there were 369,000 Common Shares available
for grant under the Plan that are not subject to outstanding Options, with a
proposed maximum offering price of $4.13 per share, which is the closing price
for one Common Share as reported by the NASD Electronic Bulletin Board on
December 24, 1996 (the "Average Price").
<PAGE>
AMERICAN BIO MEDICA CORPORATION
REOFFER PROSPECTUS
CROSS REFERENCE SHEET
Showing Location in Prospectus of Information Required by Part I of Form
SB-2.
Item Heading Caption in Prospectus
- ------- ------------------------------- ---------------------
Item 1 Front of Registration Statement
and Outside Front Cover
of Prospectus Facing Page of Registration
Statement; Prospectus Cross
Reference Sheet; Front Cover
Page of Prospectus
Item 2 Inside Front and Outside Back
Cover Pages of Prospectus Available Information; Certain
Documents by Reference; Table
of Contents
Item 3 Summary Information
and Risk Factors Front Cover Page of Prospectus
Item 4 Use of Proceeds Use of Proceeds
Item 5 Determination of Offering Price Not Applicable
Item 6 Dilution Not Applicable
Item 7 Selling Security-Holders Selling Shareholders
Item 8 Plan of Distribution Plan of Distribution
Item 9 Legal Proceedings Not Applicable
Item 10 Directors, Executive Officers,
Promoters and Control Persons Not Applicable
Item 11 Security Ownership of Certain
Beneficial Owners and Not Applicable
Management
Item 12 Description of Securities Not Applicable
Item 13 Interest of Named Experts
and Counsel Interests of Named Experts
and Counsel
Item 14 Disclosure of Commission Position
on Indemnification For
Securities Act Liabilities Not Applicable
Item 15 Organization Within Last Five Years Not Applicable
Item 16 Description of Business Not Applicable
Item 17 Management's Discussion and
Analysis of Plan of Operation Not Applicable
Item 18 Description of Property Not Applicable
Item 19 Certain Relationships
and Related Transactions Not Applicable
Item 20 Market for Common Equity
and Related Stockholder Matters Not Applicable
Item 21 Executive Compensation Not Applicable
Item 22 Financial Statements Not Applicable
Item 23 Changes in and Disagreement
With Accountants on Accounting
and Financial Disclosure Not Applicable
<PAGE>
Prospectus
AMERICAN BIO MEDICA CORPORATION
102 Simons Road
Ancramdale, New York 10253
(800) 227-1243
2,000,000 Common Shares
($0.01 per value per share)
This prospectus (the "Prospectus") relates to an aggregate of 2,000,000
common shares, $.01 par value each, ("Common Shares") of American Bio Medica
Corporation (the "Registrant"), and is to be used in connection with the reoffer
and resale of Common Shares issuable to the selling shareholders of the
Registrant listed in the section entitled "Selling Shareholders" herein (the
"Selling Shareholders") upon exercise of Options issued, or which may be issued,
under the Registrant's Nonstatutory Stock Option Plan (the "Plan"). The Common
Shares may be sold in the market (the NASD Electronic Bulletin Board) or in
privately negotiated transactions from time to time. The Registrant will not
receive any proceeds from the sale of Common Shares registered hereby.
The Registrant's Common Shares trade on the NASD Electronic Bulletin Board
(the "Bulletin Board") under the symbol "ABMC." The last reported sales price of
a Common Share on the Bulletin Board on December 24, 1996 was $4.13.
-----------------------------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON
THE ACCURACY OR ADEQUACY OF THE PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-----------------------------------------------------------
The offer and sale of the Shares will be made in accordance with the plan
of distribution described in the Prospectus. (See "Plan of Distribution.") The
Selling Shareholders reserve the sole right to accept and, together with their
agents from time to time, to reject, in whole or in part, any proposed purchase
of Common Shares to be made directly or through agents. The Registrant will pay
all expenses of this offering (the "Offering"), other than selling commissions
to or expenses of brokers or dealers retained by the Selling Shareholders, which
commissions and expenses will be paid by the Selling Shareholders.
If an agent of any Selling Shareholder or a dealer is involved in the sale
of the Shares in respect of which the Prospectus is being delivered, the net
proceeds to the Selling Shareholders from such sale will be the purchase price
of such Shares less such commission in the case of an agent, the purchase price
of such Shares in the case of a dealer, and less, in each case, other
attributable issuance expenses. The aggregate proceeds to the Selling
Shareholders from all the Shares will be the purchase price of Shares sold less
the aggregate of agents' commissions and other expenses of issuance and
distribution. See "Plan of Distribution" for possible indemnification
arrangements for the agents and dealers.
No person has been authorized to give any information or to make any
representation not contained in the Prospectus. If given or made, such
information or representation must not be relied upon as having been authorized
by the Registrant or the Selling Shareholders. The Prospectus does not
constitute an offer to sell or the solicitation of an offer to buy any
securities other than the Common Shares offered herein, nor does it constitute
an offer to any person in any jurisdiction in which such offer or solicitation
would be unlawful. Neither the delivery of the Prospectus nor any sale made
hereunder shall, under any circumstances, create any implication that the
information contained herein is correct as of any time subsequent to the date
hereof.
The date of the Prospectus is December 26, 1996.
<PAGE>
TABLE OF CONTENTS
Page
----
Available Information..........................................2
Incorporation of Certain Documents by Reference................2
Use of Proceeds................................................3
Selling Shareholders...........................................3
Plan of Distribution...........................................3
AVAILABLE INFORMATION
The Registrant is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). The reports, proxy
statements and other information filed by the Registrant with the Commission can
be inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices at Seven World Trade Center (13th Floor), New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661, and copies of such material can be obtained from the Public Reference
Section of the Commission, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. The Commission also maintains a World Wide Web site on the
Internet at at http://www.sec.gov that contains copies of reports, proxy and
information statements and other information regarding registrants that file
electronically, including the Registrant, with the Commission.
This Prospectus constitutes a part of a Registration Statement filed by the
Registrant with the Commission under the Securities Act of 1933, as amended (the
"Securities Act"). The Prospectus omits certain information contained in the
Registration Statement, and reference is hereby made to that Registration
Statement and the exhibits filed therewith for further information with respect
to the Registrant and the Common Stock offered hereby. Any statements contained
herein concerning the provisions of any document are not necessarily complete,
and, in each instance, reference is made to the copy of such document filed as
an exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
(1) Form 10SB registration statement under the Exchange Act
(2) Amendments 1 and 2 on Form 10SB/A
(3) Quarterly Report on Form 10-QSB for the six months ended October 31,
1996;
(4) Amendment on Form 10-Q/A to the Quarterly Report on Form 10-QSB for
the six months ended October 31, 1996;
(4) Form SB-2 registration statement under the Securities Act;
(5) Amendment 1 on Form SB-2/A
(6) The description of the Registrant's Common Shares, $0.01 par value,
contained in the Registrant's Registration Statement on Form 10 SB/A,
dated December 20, 1996, filed pursuant to Section 12 of the Exchange
Act, including any further amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which registers all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
The Registrant will provide without charge to any person, including any
beneficial owner, to whom a Prospectus is delivered, upon written or oral
request of such person, a copy of any and all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Requests should be directed to American Bio Medica Corporation, 102 Simons
Road, Ancramdale, New York 10253; phone: 800-227-1243; fax: 518-329-4156; email:
[email protected].
2
<PAGE>
USE OF PROCEEDS
The Registrant will not receive any proceeds from the sale of Common Shares
by the Selling Shareholders.
SELLING SHAREHOLDERS
The Selling Shareholders under the Prospectus are directors and executive
officers of the Registrant who may be deemed affiliates of the Registrant. The
names of the Selling Shareholders and the number of Common Shares which will be
sold hereunder are as follows:
Stan Cipkowski 550,000 shares
Edmund Jaskiewicz 250,000 shares
Jay Bendis 300,000 shares
Henry Wells 150,000 shares
PLAN OF DISTRIBUTION
The Selling Shareholders (or their pledgees, donees, transferees, or other
successors in interest) from time to time may sell all or a portion of the
Shares "at the market" to or through a market maker or into an existing trading
market, in private sales, including direct sales to purchasers, or otherwise at
prevailing market prices or at negotiated or fixed prices. By way of example,
and not by way of limitation, the Common Shares may be sold by one or more of
the following methods: (a) a block trade in which the broker or dealer so
engaged will attempt to sell the Shares as agent but may purchase and resell a
portion of the block as principal to facilitate the transaction; (b) purchases
by a broker or dealer as principal and resale by such broker or dealer for its
account pursuant to this Prospectus; (c) an exchange distribution in accordance
with the rules of such exchange; and (d) ordinary brokerage transactions and
transactions in which the broker solicits purchasers. In effecting sales,
brokers or dealers engaged by the seller may arrange for other brokers or
dealers to participate. Brokers or dealers will receive commissions or discounts
from the seller in amounts to be negotiated immediately prior to the sale. Such
brokers or dealers and any other participating brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act, in connection
with such sales. In addition, any securities covered by the Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to the Prospectus.
The Selling Shareholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of the Shares
against certain liabilities, including liabilities arising under the Securities
Act. Any commissions paid or any discounts or concessions allowed to any such
broker-dealer which purchases Shares as principal or any profits received on the
resale of such Shares may be deemed to be underwriting discounts and commissions
under the Securities Act.
In order to comply with certain state securities laws, if applicable, the
Common Shares will not be sold in a particular state unless the Common Shares
have been registered or qualified for sale in such state or an exemption from
registration or qualification is available and is complied with.
The Common Shares offered hereby will be sold by the Selling Shareholders
acting as principals for their own account. The Registrant will receive none of
the proceeds from such sales.
3
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act, and the instructional
Note to Part I of Form S-8, the information required by Part I to be contained
in the Section 10(a) prospectus has been omitted from this Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by American Bio Medica Corporation (the
"Registrant") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) Form 10SB registration statement under the Exchange Act
(2) Amendments 1 and 2 on Form 10SB/A
(3) Quarterly Report on Form 10-QSB for the six months ended October 31,
1996;
(4) Amendment on Form 10-Q/A to the Quarterly Report on Form 10-QSB for
the six months ended October 31, 1996;
(4) Form SB-2 registration statement under the Securities Act;
(5) Amendment 1 on Form SB-2/A
(6) The description of the Registrant's Common Shares, $0.01 par value,
contained in the Registrant's Registration Statement on Form 10SB/A,
dated December 20, 1996, filed pursuant to Section 12 of the Exchange
Act, including any further amendment or report filed for the purpose
of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which registers all securities then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to be 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.
Pensley & Fugler, Esqs., 2067 Broadway, New York, New York 10023 have given
the Company their opinion upon the validity of the securities being registered
and have acted as counsel to the Company upon other legal matters in connection
with the registration or offering of such securities. Joel Pensley, a partner in
such firm, owns 100,000 Common Shares and 160,000 options issued under the
Plan
and Michael Roy Fugler, a partner in such firm, owns 5,000
Common Shares and 40,000 options issued under the Plan.
II-1
<PAGE>
Item 6. Indemnification of Directors and Officers.
The personal liability of the directors of the Corporation is eliminated to
the fullest extent permitted by the provisions of paragraph (b) of Section 402
of the Business Corporation Law, as the same may be amended and supplemented.
Section 402(b) of the Business Corporation Law of New York reads:
"The certificate of incorporation may set forth a provision eliminating or
limiting the personal liability of directors to the corporation or its
shareholders for damages for any breach of duty in such capacity, provided that
no such provision shall eliminate or limit:
(1) the liability of any director if a judgment or other final adjudication
adverse to him establishes that his acts or omissions were in bad faith or
involved intentional misconduct or a knowing violation of law or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled or that his acts violated section 719, or
(2) the liability of any director for any act or omission prior to the
adoption of a provision authorized by this paragraph."
The New York Business Corporation Law provides for the indemnification of
the Company's officers, directors and corporate employees and agents under
certain circumstances as follows:
Sections 721 through 726 read as follows:
"721 NONEXCLUSIVITY OF STATUTORY PROVISIONS FOR INDEMNIFICATION OF
DIRECTORS AND OFFICERS.
The indemnification and advancement of expenses granted pursuant to, or
provided by, this article shall not be deemed exclusive of any other rights to
which a director or officer seeking indemnification or advancement of expenses
may be entitled, whether contained in the certificate of incorporation or the
by-laws or, when authorized by such certificate of incorporation or by-laws, (i)
a resolution of shareholders, (ii) a resolution of directors, or (iii) an
agreement providing for such indemnification, provided that no indemnification
may be made to or on behalf of any director or officer if a judgment or other
final adjudication adverse to the director or officer establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty and were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled. Nothing contained in this article shall affect any rights
to indemnification to which corporate personnel other than directors and
officers may be entitled by contract or otherwise under law.
722 AUTHORIZATION FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) A corporation may indemnify any person, made, or threatened to be made,
a party to an action or proceeding other than one by or in the right of the
corporation to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership joint venture, trust, employee
benefit plan or other enterprise, which any director or officer of the
corporation served in any capacity at the request of the corporation, by reason
of the fact that he, his testator or intestate, was a director or officer of the
corporation, or served such other corporation, partnership, joint venture,
trust, employee benefit plan or other enterprise in any capacity, against
judgments, fines, amounts paid in settlement and reasonable expenses, including
attorney's fees actually and necessarily incurred as a result of such action or
proceeding, or any appeal therein, if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful.
II-2
<PAGE>
(b) The termination of any such civil or criminal action or proceeding by
judgment, settlement, conviction or upon a plea of nolo contendere, or its
equivalent, shall not in itself create a presumption that any such director or
officer did not act, in good faith, for a purpose which he reasonably believed
to be in, or, in the case of service for any other corporation or any
partnership, joint venture, trust, employee benefit plan or other enterprise,
not opposed to, the best interests of the corporation or that he had reasonable
cause to believe that his conduct was unlawful.
(c) A corporation may indemnify any person made, or threatened to be made,
a party to an action by or in the right of the corporation to procure a judgment
in its favor by mason of the fact that he, his testator or intestate, is or was
a director or officer of the corporation, or is or was seeing at the request of
the corporation as a director or officer of any other corporation of any type or
kind, domestic or foreign, of any partnership, joint venture, trust, employee
benefit plan or other enterprise, against amounts paid in settlement and
reasonable expenses, including attorneys/lees, actually and necessarily incurred
by him in connection with the defense or settlement of such action, or in
connection with an appeal therein if such director or officer acted, in good
faith, for a purpose which he reasonably believed to be in, or, in the case of
service for any other corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, not opposed to, the best interests of
the corporation, except that no indemnification under this paragraph shall be
made in respect of (1) a threatened action, or a pending action which is settled
or otherwise disposed of, or (2) any claim issue or matter as to which such
person shall have been adjudged to be liable to the corporation. unless and only
to the extent that the court on which the action was brought, or, if no action
was brought, any court of competent jurisdiction, determines upon application
that, in view of all the circumstances of the case, the person is fairly and
reasonably entitled to indemnity for such portion of the settlement amount and
expenses as the court deems proper.
(d) For the purpose of this section, a corporation shall be deemed to have
requested a person to serve an employee benefit plan where the performance by
such person of his duties to the corporation also imposes duties on, or
otherwise involves services by, such person to the plan or participants or
beneficiaries of the plan; excise taxes assessed on a person with respect to an
employee benefit plan pursuant to applicable law shall be considered fines; and
action taken or omitted by a person with respect to an employee benefit plan in
the performance of such person's duties for a purpose reasonably believed by
such person to be in the interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not opposed to the best
interests of the corporation.
723 PAYMENT OF INDEMNIFICATION OTHER THAN BY COURT AWARD.
(a) A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in section 722 shall be entitled to indemnification as authorized in such
section.
(b) Except as provided in paragraph (a), any indemnification under section
722 or otherwise permitted by section 721, unless ordered by a court under
section 724 (Indemnification of directors and officers by a court), shall be
made by the corporation, only if authorized in the specific case:
(1) By the board acting by a quorum consisting of directors who are not
parties to such action or proceeding upon a finding that the director or officer
has met the standard of conduct set forth in section 722 or established pursuant
to section 721, as the case may be, or,
II-3
<PAGE>
(2) If a quorum under subparagraph (1) is not obtainable or, even if
obtainable, a quorum of disinterested directors so directs;
(A) By the board upon the opinion in writing of independent legal counsel
that indemnification is proper in the circumstances because the applicable
standard of conduct set forth in such sections has been met by such director or
officer, or
(B) By the shareholders upon a finding that the director or officer has met
the applicable standard of conduct set forth in such sections.
(C) Expenses incurred in defending a civil or criminal action or proceeding
may be paid by the corporation in advance of the final disposition of such
action or proceeding upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount as, and to the extent, required by
paragraph (a) of section 725.
724 INDEMNIFICATION OF DIRECTORS AND OFFICERS BY A COURT.
(a) Notwithstanding the failure of a corporation to provide
indemnification, and despite any contrary resolution of the board or of the
shareholders in the specific case under section 723 (Payment of indemnification
other than by court award), indemnification shall be awarded by a court to the
extent authorized under section 722 (Authorization for indemnification of
directors and officers) and paragraph (a) of section 723. Application therefore
may be made, in every case, either
(1) In the civil action or proceeding in which the expenses were incurred
or the amounts were paid, or
(2) to the supreme court in a separate proceeding, in which case the
application shall set forth the disposition of any previous application made to
any court for the same or similar relief and also reasonable cause for the
failure to make application for such relief in the action or proceeding in which
the expenses were incurred or other amounts were paid
(b) the application shall be made in such manner and form as may be
required by the applicable rules of court or, in the absence thereof, by
direction of a court to which it is made. Such application shall be upon notice
to the corporation. The court may also direct that notice by given at the
expense of the corporation to the shareholder and such other person as it may
designate in such manner as it may require.
(c) Where indemnification is sought by judicial action, the court may allow
a person such reasonable expenses, including attorneys' fees, during the
pendency of the litigation as are necessary in connection with his defense
therein, if the court shall find that the defendant has by his pleadings or
during the course of the litigation raised genuine issues of fact or law.
725 OTHER PROVISIONS AFFECTING INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a) All expenses incurred in defending a civil or criminal action or
proceeding which are advanced by the corporation under paragraph (c) of section
723 (Payment of indemnification other than by court award) or allowed by a court
under paragraph (c) of section 724 (Indemnification of directors and officers by
a court) shall be repaid in case the person receiving such advancement or
allowance is ultimately found, under the procedure set forth in this article,
not to be entitled to indemnification or, where indemnification is granted, to
the extent the expenses so advanced by the corporation or allowed by the court
exceed the indemnification to which he is entitled.
II-4
<PAGE>
(b) No indemnification, advancement or allowance shall be made under this
article in any circumstance where it appears:
(1) That the indemnification would be inconsistent with the law of the
jurisdiction of incorporation of a foreign corporation which prohibits or
otherwise limits such indemnification
(2) That the indemnification would be inconsistent with a provision of the
certificate of incorporation, a by-law, a resolution of the board or of the
shareholders, an agreement or other proper corporate action, in effect at the
time of the accrual of the alleged cause of action asserted in the threatened or
pending action or proceeding in which the expenses were incurred or other
amounts were paid, which prohibits or otherwise limits indemnification; or
(3) If there has been a settlement approved by the court, that the
indemnification would be inconsistent with any condition with respect to
indemnification expressly imposed by the court in approving the settlement.
(c) If any expenses or other amounts are paid by way of indemnification,
otherwise than by court order or action by the shareholders, the corporation
shall, not later than the next annual meeting of shareholders unless such
meeting is held within three months from the date of such payment, and in any
event, within fifteen months from the date of such payment, mail to its
shareholders of record at the time entitled to vote for the election of
directors a statement specifying the persons paid, the amounts paid, and the
nature and status at the time of such payment of the litigation or threatened
litigation.
(d) If any action with respect to indemnification of directors and officers
is taken by way of amendment of the by-laws, resolution of directors, or by
agreement, then the corporation shall, not later than the next annual meeting of
shareholders, unless such meeting is held within three months from the date of
such action, and, in any event, within fifteen months from the date of such
action, mail to its shareholders of record at the time entitled to vote for the
election of directors a statement specifying the action taken.
(e) Any notification required to be made pursuant to the foregoing
paragraph (c) or (d) of this section by any domestic mutual insurer shall be
satisfied by compliance with the corresponding provisions of section one
thousand two hundred sixteen of the insurance law.
726 INSURANCE FOR INDEMNIFICATION OF DIRECTORS AND OFFICERS.
a) Subject to paragraph (b), a corporation shall have power to purchase and
maintain insurance:
(1) To indemnify the corporation for any obligation which it incurs as a
result of the indemnification of directors and officers under the provisions of
this article, and
(2) To indemnify directors and officers in instances in which they may be
indemnified by the corporation under the provisions of this article, and
(3) To indemnify directors and officers in instances in which they may not
otherwise be indemnified by the corporation under the provisions of this article
provided the contract of insurance covering such directors and officers
provides, in a manner acceptable to the superintendent of insurance, for a
retention amount and for co-insurance.
II-5
<PAGE>
(b) No insurance under paragraph (a) may provide for any payment, other
than cost of defense, to or on behalf of any director or officer:
(1) if a judgment or other final adjudication adverse to the insured
director or officer establishes that his acts of active and deliberate
dishonesty were material to the cause of action so adjudicated, or that he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled, or
(2) in relation to any risk the insurance of which is prohibited under the
insurance law of this state.
(c) Insurance under any or all subparagraphs of paragraph (a) may be
included in a single contract or supplement thereto. Retrospective rated
contracts are prohibited.
(d) The corporation shall, within the time and to the persons provided in
paragraph (c) of section 725 (Other provisions affecting indemnification of
directors or officers), mail a statement in respect of any insurance it has
purchased or renewed under this section, specifying the insurance carrier, date
of the contract, cost of the insurance, corporate positions insured, and a
statement explaining all sums, not previously reported in a statement to
shareholders, paid under any indemnification insurance contract.
(e) This section is the public policy of this state to spread the risk of
corporate management, notwithstanding any other general or special law of this
state or of any other jurisdiction including the federal government."
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 American Bio Medica Corporation Nonstatutory Stock Option Plan
4.2 Certificate of Incorporation and amendments thereto (incorporated by
reference to Exhibit 3.1, 3.2, 3.3, 3.4 and 3.6 of the Registrant's
Registration Statement on Form 10SB (File No. 0-28666)
5 Opinion of Pensley & Fugler
23.1 Consent of Thomas P. Monahan, CPA
23.2 Consent of Pensley & Fugler (included in its opinion filed as Exhibit
5)
II-6
<PAGE>
Item 9. UNDERTAKINGS
American Bio Medica Corporation hereby undertakes:
The undersigned hereby undertakes:
(a) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement (the "Registration
Statement"):
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (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 (a)(i) and (a(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 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 this
Registration Statement.
(b) that, for the purposes 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;
(c) 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 Plan;
(d) that, for purpose 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 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.
(e) that, 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.
II-7
<PAGE>
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 Town of Ancramdale, and State of New York on the 20th day of
November, 1996.
AMERICAN BIO MEDICA CORPORATION
(Registrant)
Date: December 26, 1996 By: /s/Stan Cipkowski
--------------------
Stan Cipkowski,
President and Principal
Executive Officer and
Principal Financial Officer
Dated: December 26, 1996
Pursuant to the requirements of the Securities Act of 1933, this report has
been signed by the following persons on behalf of the registrant and in the
capacities on the date(s).
/s/Stan Cipkowski Director December 26, 1996
------------------
Stan Cipkowski
Director
------------------
Edmund Jaskiewicz
/s/Jay Bendis Director December 26, 1996
------------------
Jay Bendis
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
------- -----------
4.1 American Bio Medica Corporation Nonstatutory Stock Option Plan
4.2 Certificate of Incorporation and amendments thereto (incorporated by
reference to Exhibit 3.1, 3.2, 3.3, 3.4 and 3.6 of the Registrant's
Registration Statement on Form 10SB (File No. 0-28666)
5 Opinion of Pensley & Fugler
23.1 Consent of Thomas P. Monahan, CPA
23.2 Consent of Pensley & Fugler (included in its opinion filed as Exhibit
5)
Exhibit 4.1
AMERICAN BIO MEDICA CORPORATION
NONSTATUTORY STOCK OPTION PLAN
June 28, 1996
1. Purpose
The purpose of this Nonstatutory Stock Option Plan (hereinafter referred to
as the "Plan"), is to provide a special incentive to selected individuals who
have made significant contributions to the business and success of AMERICAN BIO
MEDICA CORPORATION, (hereinafter referred to as the "Company"). The Plan is
designed to accomplish this purpose by offering such individuals options
("Options") to purchase shares of the common stock of the Company ("Shares") so
that they will share in the Company's success.
2. Administration
The Plan shall be administered by the board of directors of the Company or
by an option committee to be established by the board of directors of the
Company. If an option committee administers the Plan, it shall consist of three
or more members, at least one of whom shall be neither an officer nor an
employee of the Company. (The board of directors or an option committee shall be
referred to as the "Board" herein.)
The Board shall have authority, consistent with the Plan,
(a) to determine which individuals shall be granted Options;
(b) to determine the time or times when Options shall be granted and the
number of Shares to be subject to each Option;
(c) to determine the exercise price of the Shares subject to each Option
and the method of payment of such price;
(d) to determine the time or times when each Option becomes exercisable
and the duration of the exercise period, subject to the limitations
contained in Paragraph 6(b);
(e) to prescribe the form or forms of the instruments evidencing any
Options granted under the Plan and of any other instruments required
under the Plan and to change such forms from time to time;
(f) to adopt, amend and rescind rules and regulations for the
administration of the Plan and the Options and for its own acts and
proceedings; and
(g) to decide all questions and settle all controversies and disputes
which may arise in connection with the Plan. All decisions,
determinations and interpretations of the Board shall be binding on
all parties concerned.
3. Participants
The Participants in the Plan shall be employees, officers, directors,
consultants of the Company or any other parties who have made a significant
contribution to the business and success of the Company, as may be selected from
time to time by the Board in its discretion. In any grant of Options after the
initial grant, Participants who were previously granted Options or sold Shares
under the Plan may be included or excluded.
1
<PAGE>
4. Limitations
No Option shall be granted under the Plan after April 30, 2000, but Options
theretofore granted may extend beyond that date. Subject to adjustment as
provided in Section 8 of the Plan, the number of Shares which may be issued
under the Plan shall not exceed two (2,000,000) million in the aggregate. To the
extent that any Option granted under the Plan shall expire or terminate
unexercised or for any reason become unexercisable as to any Shares subject
thereto, such Shares shall thereafter be available for further grants under the
Plan, within the limit specified above.
5. Shares to be Issued
Shares to be issued under the Plan may constitute an original issue of
authorized Shares or may consist of previously issued Shares acquired by the
Company, as shall be determined by the Board. The Board and the proper officers
of the Company shall take any appropriate action required for such issuance. The
maximum number of Shares which may be issued under the Plan is two million
(2,000,000) Shares.
6. Terms and Conditions of Options
All Options granted under the Plan shall be subject to the following terms
and conditions (except as provided in Section 7) and to such other terms and
conditions as the Board shall determine to be appropriate to accomplish the
purposes of the Plan:
(a) Exercise price. The exercise price under each Option shall be
determined by the Board and may be more, equal to or less than the
then current market price of the Shares as the Board may deem to be
appropriate: provided, however, that in the event an option committee
shall determine to grant an Option at less than 85% of the then
current market price of the Shares, such Option shall not be granted
by the option committee without the prior approval of the board of
directors.
(b) Period of Options. The period of an Option shall not exceed five years
from the date of grant.
(c) Exercise of Options.
(i) Each Option shall be made exercisable at such time or times,
whether or not in installments, as the Board shall prescribe at
the time the Option is granted.
(ii) A person electing to exercise an Option shall give written notice
to the Company, as specified by the Board, of his election and of
the number of Shares he has elected to purchase, such notice to
be accompanied by such instruments or documents as may be
required by the Board, and shall at the time of such exercise
tender the purchase price of the Shares he has elected to
purchase.
(d) Payment for Issuance of Shares. Upon exercise of any Option granted
hereunder, payment in full shall be made at the time of such exercise
for all such Shares then being purchased.
2
<PAGE>
The Company shall not be obligated to issue any Shares unless and until, in
the opinion of the Company's counsel, all applicable laws and regulations have
been complied with, nor, in the event the Shares at the time listed upon any
stock exchange, unless and until the Shares to be issued have been listed or
authorized to be added to the list upon official notice of issuance upon such
exchange, nor unless or until all other legal matters in connection with the
issuance and delivery of Shares have been approved by the Company's counsel.
Without limiting the generality of the foregoing, the Company may require from
the Participant such investment representation or such agreement, if any, as
counsel for the Company may consider necessary in order to comply with the
Securities Act of 1933 as then in effect, and may require that the Participant
agree that any sale of the Shares will be made only in such manner as is
permitted by the Board and that a Participant will notify the Company when
he/she intends to make any disposition of the Shares whether by sale, gift or
otherwise. The Participant shall take any action reasonably requested by the
Company in such connection. A Participant shall have the rights of a stockholder
only as to Shares actually acquired by him/her under the Plan.
(e) Transferability of Options. No Option may be transferred by the
Participant otherwise than by will or by the laws of descent and
distribution, and during the Participant's lifetime the Option may be
exercised only by the Participant.
(f) Termination of Employment. If the Participant is an employee and
his/her employment terminates for any reason other than his/her death,
the Participant may, unless discharged for cause, thereafter exercise
his/her Option as provided below, but only to the extent the
Participant was entitled to exercise the Option on the date when
his/her employment terminated. If such termination of employment is
voluntary on the part of the Participant, he/she may exercise his/her
Option only within ten days after the date of termination of
employment (unless a longer period not in excess of three months is
allowed by the Board). If such termination of employment is
involuntary on the part of the Participant, he/she may exercise
his/her Option only within three months after the date of termination
of employment. In no event, however, may such Participant exercise
his/her Option at a time when the Option would not be exercisable had
the Participant remained an employee or when the termination was for
cause. For purposes of this section (f), a Participant's employment
shall not be considered terminated in the case of sick leave or other
bona fide leave of absence approved by the Company or a subsidiary, or
in the case of a transfer to the employment of a subsidiary or to the
employment of the Company. Anything herein to the contrary
notwithstanding, an Option may be exercised only to the extent
exercisable on the date of termination of employment by death or
otherwise.
(g) Retirement or Resignation. If prior to the expiration date of a
Participant's Option an optionee shall retire or resign with the
Company's consent such Option may be exercised in the same manner as
if the Optionee had continued in the Company's employ; provided,
however, the Board may terminate, at any time prior to exercise, all
unexercised Options if it shall determine that the retired or
resigning optionee has engaged in any activity detrimental to the
Company's interest.
(h) Death. If a Participant dies at a time when he/she is entitled to
exercise an Option, then at any time or times within one (1) year
after his/her death (or such further period as the Board may allow)
such Option may be exercised, as to all or any of the Shares which the
Participant was entitled to purchase immediately prior to his/her
death, by his/her executor or administrator or the person or persons
to whom the Option is transferred by will or the applicable laws of
descent and distribution, and except as so exercised such Option shall
expire at the end of such period. In no event, however, may an Option
be exercised after the expiration of the Option period.
3
<PAGE>
7. Replacement Options
The Company may grant Options under the Plan on terms differing from those
provided for in Section 6 where such Options are granted in substitution for
Options held by employees of other corporations who concurrently become
employees of the Company or a subsidiary as the result of a merger,
consolidation or other reorganization of the employing corporation with the
Company or subsidiary, or the acquisition by the Company or a subsidiary of the
business, property or stock of the employing corporation. The Board may direct
that the substitute Options be granted on such terms and conditions as the Board
considers appropriate in the circumstances.
8. Changes in Stock
In the event of a stock dividend, stock split or recapitalization or merger
in which the Company is the surviving corporation, or other similar capital
change, the number and kind of shares of stock or securities of the Company to
be subject to the Plan and to Options then outstanding or to be granted
thereunder, the maximum number of Shares or securities which may be issued or
sold under the Plan, the exercise price and other relevant provisions shall be
appropriately adjusted by the Board of the Company, the determination of which
shall be binding on all persons.
9. Employment Rights
The adoption of the Plan or the granting of an Option does not confer upon
any individual any right to employment or continued employment with the Company
or a subsidiary, as the case may be, nor does it interfere in any way with the
right of the Company or a subsidiary to terminate the employment of any of its
employees at any time.
10. Amendment
The Board may at any time discontinue granting Options under the Plan. The
Board of the Company may at any time or times amend the Plan or amend any
outstanding Option or Options for the purpose of satisfying the requirements of
any changes in applicable laws or regulations or for any other purpose which may
at the time be permitted by law provided, however, that, except to the extent
required or permitted under Section 8, no such amendment shall void or diminish
Options previously granted without the consent of the Participant, nor shall any
amendment increase or accelerate the conditions and actions required for the
exercise of an Option unless the Participant shall have been discharged from the
company's employment for cause.
Adopted by the Board of Directors
on June 28, 1996
4
<PAGE>
Exhibit 5
PENSLEY & FUGLER
Counselors-at-Law
2067 Broadway
New York, New York 10023
212-595-4955
Fax: 212-595-4966
December 26, 1996
American Bio Medica Corporation
102 Simons Road
Ancramdale, New York 10253
Re: Registration Statement on Form S-8
Gentlemen:
We refer to the registration statement on Form S-8 (the "Registration
Statement") of American Bio Medica Corporation, a New York corporation (the
"Company"), to be delivered for filing to the Securities and Exchange Commission
(the "Commission") on diskette by overnight delivery service on or about
December 27, 1996, relating to 2,000,000 common shares, $.01 par value per
share, ("Common Shares") issuable on exercise of options ("Options") under the
Company's Nonstatutory Stock Option Plan.
We have reviewed such documents and records as we have deemed necessary to
enable me to express an informed opinion on the matters covered thereby and we
are of the opinion that:
The 2,000,000 Common Shares issuable upon exercise of the Options will,
upon issuance, be legally issued, fully paid and non-assessable.
We hereby consent to the use of our name in the Registration Statement
under the caption "Interest of Named Experts and Legal Counsel."
Very truly yours,
/s/Pensley & Fugler
Pensley & Fugler
Exhibit 23.1
ACCOUNTANT'S CONSENT
The Board of Directors
American Bio Medica Corporation
As an independent public accountant, I hereby consent to the use of my
report to the Board of Directors of American Bio Medica Corporation dated July
15, 1996 relating to the balance sheet dated April 30, 1996 and 1995 and the
statement of operations, cash flows and stockholders' equity for the years ended
April 30, 1996 and 1995 in a registration statement under Form S-8.
/s/Thomas P. Monahan
-------------------
Thomas P. Monahan
Paterson, New Jersey
December 26, 1996
