<PAGE> 1
As filed with the Securities and Exchange Commission on November 15,1999
Registration No. 333-
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 14-1702188
---------------------------- ----------------------------
(State or other jurisdiction (IRS employer identification
of incorporation or organization) number)
122 Smith Road, Kinderhook, NY 12106
-------------------------------------------- ---------
(Address of principal executive offices) (Zip code)
FISCAL 1998 NON-STATUTORY STOCK OPTION PLAN
FISCAL 2000 NON-STATUTORY STOCK OPTION PLAN
------------------------------------------
(Full title of plans)
Stan Cipkowski
President/Chief Executive Officer/Chairman of the Board
c/o American Bio Medica Corporation
122 Smith Road, Kinderhook, NY 12106
800-227-1243
------------
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
===============================
- --------------------------------------------------------------------------------
Proposed
Proposed Maximum
Title of each class Amount maximum aggregate Amount of
of securities to be offering price offering registration
to be registered registered per unit (2) price (1) fee
- --------------------------------------------------------------------------------
Common Shares(2) 1,000,000 N/A $2,919,728 $ 811.68
Common Shares(3) 1,000,000 N/A $1,610,000 $ 447.58
---------
Total registration fee $1,259.26
(1) Estimated solely for the purpose of calculating the registration fee.
(2) These Common Shares are offered under the Company's Fiscal 1998
Non-Statutory Stock Option Plan. Pursuant to Rule 457(h)( 1), the filing
fee for the 942,250 Common Shares subject to options that have been
granted is calculated based upon the weighted average of the various
strike prices of such shares, which is $3.00. Pursuant to Rule 457(h)( 1),
the filing fee for the 57,750 Common Shares subject to options that have
not yet been granted is calculated based upon the average of the bid and
asked prices per Common Share on November 1, 1999, as reported on the
Nasdaq SmallCap Market, which was $1.61 per share.
(3) These Common Shares are offered under the Company's Fiscal 2000
Non-Statutory Stock Option Plan. Pursuant to Rule 457(h)( 1), the filing
fee for the 1,000,000 Common Shares subject to options that have not yet
been granted is calculated based upon the average of the bid and asked
prices per Common Share on November 1, 1999, which was $1.61 per share.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In accordance with Rule 428 under the Securities Act of 1933, as amended,
and the 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
"Company") with the Securities and Exchange Commission (the "Commission") are
incorporated by reference in this Registration Statement:
(1) The Company's Annual Report on Form 10-KSB for the year ended April
30, 1999;
(2) The Company's Quarterly Report on Form 10-QSB for the quarter ended
July 31, 1999;
(3) The Company's current report on Form 8-K filed with the Commission on
September 16, 1999; and
(4) The Company's Registration Statement on Form 8-A registering the
Common Shares under Section 12(g) of the Securities Exchange Act of
1934 (the "Exchange Act").
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 which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this registration statement and to be 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.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Article 9 of this Company's Certificate of Incorporation permits the
indemnification of officers and directors under certain circumstances to the
full extent that such indemnification may be permitted by law.
Such rights of indemnification are in addition to, and not in limitation
of, any rights to indemnification to which any officer or director of the
Company is entitled to under the Business Corporation Law of the State of New
2
<PAGE> 3
York which provides for indemnification by a corporation of its officers and
directors under certain circumstances as stated in the Business Corporation Law
and subject to specified limitations set forth in the Business Corporation Law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index on Page E-1.
Item 9. UNDERTAKINGS
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
of 1933 (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.
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:
(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 this 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 this Registration Statement; and
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this Registration Statement
or any material change to such information in this Registration
Statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post effective amendment by these
paragraphs is contained in periodic reports filed by the Company pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act") 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
3
<PAGE> 4
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 offering;
(d) That,for purposes of determining any liability under the Securities
Act, each filing of the Company's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act(and, where applicable, each filing
of an employee benefits 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 herein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Kinderhook, State of New York on November 11, 1999.
AMERICAN BIO MEDICA CORPORATION
(Registrant)
By: /s/Stan Cipkowski
------------------
Stan Cipkowski,
President, Chief Executive Officer, &
Chairman of the Board of Directors
4
<PAGE> 5
POWER OF ATTORNEY
Each of the undersigned officers and directors of American Bio Medica
Corporation whose signature appears below hereby appoints Stan Cipkowski and
John F. Murray, and each of them, as true and lawful attorney-in-fact for the
undersigned with full power of substitution, to execute in his name and on his
behalf in each capacity stated below, any and all amendments (including
post-effective amendments) to this Registration Statement as the
attorney-in-fact shall deem appropriate, and to cause to be filed any such
amendment (including exhibits thereto and other documents in connection
therewith) to this Registration Statement with the Securities and Exchange
Commission, as fully and to all intents and purposes as such person might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact, or any of them, may lawfully do or cause to be done by virtue
herewith.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on November 11, 1999:
Signature Title
--------- -----
/s/Stan Cipkowski President, Chief Executive Officer,
- --------------------- & Chairman of the Board of Directors
Stan Cipkowski (Principal Executive Officer)
/s/Edmund Jaskiewicz
- --------------------- Director & Secretary
Edmund Jaskiewicz
/s/Jay Bendis Director & Vice President Sales &
- --------------------- Marketing
Jay Bendis
/s/John F. Murray Director,Treasurer, Chief Financial Officer
- --------------------- (Principal Financial Officer)
John F. Murray
- ---------------------
Gerald Moore Director
- ---------------------
Karen Russo Director
5
<PAGE> 6
PAGE E-1
INDEX TO EXHIBITS
Exhibit Description
------- -----------
3.07 Fifth Amendment to Certificate of Incorporation*
5.01 Opinion and Consent of Hopkins & Sutter
10.01 Fiscal 1998 Non-Statutory Stock Option Plan (filed as part of the
Company's Proxy Statement for its Fiscal 1998 Annual Meeting and
incorporated herein by reference)
10.02 Fiscal 2000 Non-Statutory Stock Option Plan (filed as part of the
Company's Proxy Statement for its Fiscal 2000 Annual Meeting and
incorporated herein by reference)
23.01 Consent of Richard A. Eisner & Company, LLP
23.02 Consent of Hopkins & Sutter(contained in Exhibit 5.01)
- -----------------------------
* Previously filed as an exhibit to Registration Statement on
Form SB-2 filed on May 20, 1998 and incorporated herein by
reference
<PAGE> 1
Exhibit 5.01
H O P K I N S & S U T T E R
(A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS)
THREE FIRST NATIONAL PLAZA CHICAGO, IL 60602-4205 312-558-5600
FAX (312) 558-6538 (312) 558-6676
INTERNET HTTP://WWW.HOPSUT.COM
WASHINGTON, D.C. OFFICE 888 SIXTEENTH STREET, N.W. 20006-4163
DETROIT OFFICE 2800 LIVERNOIS SUITE 220 TROY, MI 43083-1220
November 15, 1999
American Bio Medica Corporation
122 Smith Road
Kinderhook, New York 12106
Re: Form S-8 Registration Statement
Ladies and Gentlemen:
We have acted as counsel for American Bio Medica Corporation (the
"Company") in connection with the preparation of the Registration Statement on
Form S-8, relating to the sale by the Company from time to time of up to (i)
1,000,000 Common Shares, par value $.01 per share (the "Shares"), issuable upon
the exercise of stock options granted or to be granted pursuant to the Company's
Fiscal 1998 Non-Statutory Stock Option Plan (the "1998 Stock Option Plan"); and
(ii) 1,000,000 Shares issuable upon the exercise of stock options granted or to
be granted pursuant to the Company's Fiscal 2000 Non-Statutory Stock Option Plan
(the "2000 Stock Option Plan").
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of the opinion
set forth below.
In rendering our opinion set forth below, we have assumed the
authenticity of all documents submitted to us as originals, the genuineness of
all signatures and the conformity to authentic originals of all documents
submitted to us as copies. We have also assumed the legal capacity for all
purposes relevant hereto of all natural persons and with respect to all parties
to agreements or instruments relevant hereto other than the Company, that such
parties had the requisite power and authority (corporate or otherwise) to
execute, deliver, and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action
(corporate or otherwise), executed and delivered by such parties and that such
agreements or instruments are the valid, binding, and enforceable obligations of
such parties. As to questions of fact material to our opinions, we have relied
upon certificates of officers of the Company and of public officials.
<PAGE> 2
Based on the foregoing, we are of the opinion that such Shares have
been duly authorized and, upon issuance, delivery, and payment therefore in
accordance with the terms of the 1998 Stock Option Plan and the 2000 Stock
Option Plan, will be validly issued, fully paid, and nonassessable.
Our opinion expressed above is limited to the laws of the State of New
York.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
HOPKINS & SUTTER
By: /s/ Michael J. Gamsky
-----------------------
Michael J. Gamsky, a Partner
<PAGE> 1
Exhibit 23.01
Consent of Richard A. Eisner & Company, LLP
CONSENT
We consent to the incorporation by reference in the Registration Statement
on Form S-8 of American Bio Medica Corporation of our report dated June 17, 1999
(with respect to Note H(4), July 1, 1999) on our audits of the financial
statements of American Bio Medica Corporation, as of April 30, 1999 and for each
of the two years then ended included in the Company's Annual Report on Form
10-KSB for the year ended April 30, 1999.
New York, New York
November 15, 1999
/s/Richard A. Eisner & Company, LLP.
-----------------------------------
Richard A. Eisner & Company, LLP
