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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 20, 2000
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OSTEX INTERNATIONAL, INC.
(Exact name of Registrant as specified in its charter)
WASHINGTON 91-1450247
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2203 AIRPORT WAY SOUTH, SUITE 400
SEATTLE, WASHINGTON 98134
(Address of principal executive offices, including zip code)
OSTEX INTERNATIONAL, INC.
AMENDED AND RESTATED 1994 STOCK OPTION PLAN
OSTEX INTERNATIONAL, INC.
AMENDED AND RESTATED DIRECTORS' NONQUALIFIED STOCK OPTION PLAN
(Full title of the plans)
THOMAS A. BOLOGNA
OSTEX INTERNATIONAL, INC.
2203 AIRPORT WAY SOUTH, SUITE 400
SEATTLE, WASHINGTON 98134
(206) 292-8082
(Name, address and telephone number, including area code, of agent for service)
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COPIES TO:
JAMES R. LISBAKKEN
PERKINS COIE LLP
1201 THIRD AVENUE, SUITE 4800
SEATTLE, WASHINGTON 98101-3099
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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TITLE OF SECURITIES AMOUNT TO PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE OFFERING PRICE PER AGGREGATE REGISTRATION
REGISTERED SHARE (2) OFFERING PRICE FEE
(1) (2)
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share,
under the:
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1994 Stock Option Plan 750,000 $2.094 $1,570,500 $414.61
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Directors' Nonqualified Stock Option Plan 250,000 $2.094 $ 523,500 $138.21
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TOTAL 1,000,000 $2.094 $2,094,000 $552.82
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(1) Together with an indeterminate number of additional shares which may be
necessary to adjust the number of shares reserved for issuance pursuant to
the plans as the result of any future stock split, stock dividend,
spin-off, combination or exchange of shares, recapitalization, merger,
consolidation, distribution to shareholders other than a normal cash
dividend or similar adjustment to the Registrant's outstanding Common
Stock.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, based
on the average of the high ($2.188) and low ($2.000) sales prices for the
Common Stock on July 18, 2000, as reported for such date on the Nasdaq
National Market.
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PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Securities and Exchange Commission
(the "Commission") are hereby incorporated by reference in this Registration
Statement:
(a) The Registrant's annual report on Form 10-K and Form 10-K/A for
the year ended December 31, 1999, filed on March 30, 2000 and April 14, 2000,
respectively, which contains audited financial statements for the most recent
fiscal year for which such statements have been filed;
(b) The description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed on May 6, 1996, under
Section 12(g) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendments or reports filed for the purpose of updating
such description; and
(c) All other reports filed by the Registrant pursuant to Section
13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by
the annual report on Form 10-K referred to above.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date hereof, and prior to the filing of a
post-effective amendment which indicates that the securities offered hereby have
been sold or which deregisters the securities covered hereby then remaining
unsold, shall also be deemed to be incorporated by reference into this
Registration Statement and to be a part hereof commencing on the respective
dates on which such documents are filed.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 23B.08.500 through 23B.08.600 of the Washington Business
Corporation Act (the "WBCA") authorize a court to award, or a corporation's
board of directors to grant, indemnification to directors, officers, employees
and agents of the Registrant and those serving at the Registrant's request in
similar positions in any other corporation, partnership, joint venture, trust or
other enterprise in terms sufficiently broad to permit such indemnification
under certain circumstances for liabilities (including reimbursement for
expenses incurred) arising under the Securities Act of 1933, as amended (the
"Securities Act"). Article 9 of the Registrant's Amended and Restated Articles
of Incorporation provides for indemnification of the Registrant's directors and
officers, to the full extent permitted by applicable law as then in effect,
against all expenses and liabilities (including any obligation to pay any
judgment, settlement, penalty, fine, including an excise tax assessed with
respect to an employee benefit plan, or expense incurred with respect to the
proceeding, including attorney's fees) actually and reasonably incurred in
connection with any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, and whether formal or
informal, in which the director or officer is, was or is threatened to be made a
party to or is otherwise involved in by reason of the fact that the director or
officer is or was a director or officer of the Registrant, or, by reason of the
fact that, while a director or officer of the Registrant, such director or
officer is or was serving at the request of the Registrant as a director,
officer, partner, trustee, employee or agent of another corporation or of a
partnership, joint venture, trust, employee benefit plan or other enterprise.
The director or officer will not be indemnified for any proceeding initiated by
a director or officer unless such proceeding was, prior to its initiation,
authorized by the Registrant's Board of Directors or unless the proceeding is to
enforce the rights of indemnification. No indemnity may be provided by the
Registrant for acts or omissions of an indemnified director finally adjudged to
be intentional misconduct or a knowing violation of law, for conduct of such
director finally adjudged to be in violation of Section 23B.08.310 of the WBCA,
for any transaction with respect to which it was finally adjudged that such
director personally received a benefit in money, property or services to which
the director was not legally entitled, or to the extent the corporation is
otherwise prohibited by applicable law from paying such indemnification.
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Section 23B.08.320 of the WBCA authorizes a corporation to limit a
director's liability to the corporation or its shareholders for monetary damages
for acts or omissions as a director, except in certain circumstances involving
intentional misconduct, self-dealing or illegal corporate loans or
distributions, or any transaction from which the director personally receives a
benefit in money, property or services to which the director is not legally
entitled. Article 8 of the Registrant's Amended and Restated Articles of
Incorporation provides for limitation of director liability to the maximum
extent permitted by the WBCA. The Registrant also maintains an insurance policy
insuring its directors and officers against liability for certain acts or
omissions while acting in their official capacity.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
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Exhibit
Number Description
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<S> <C>
5.1 Opinion of Perkins Coie LLP regarding legality of the Common Stock being
registered
23.1 Consent of Arthur Andersen LLP (Independent Accountants)
23.2 Consent of Perkins Coie LLP (included in opinion filed as Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Ostex International, Inc. Amended and Restated 1994 Stock Option Plan
99.2 Ostex International, Inc. Amended and Restated Directors' Nonqualified Stock
Option Plan
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ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(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) above 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 this 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) 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 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
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incorporated by reference in this 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.
(c) 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 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.
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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 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 Seattle, State of Washington, on the 18th day of
July, 2000.
OSTEX INTERNATIONAL, INC.
/s/ Thomas A. Bologna
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By: Thomas A. Bologna
Chairman, President and
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below authorizes Thomas A. Bologna and
Thomas F. Broderick, or either of them, as attorneys-in-fact with full power of
substitution, to execute in the name and on the behalf of each person,
individually and in each capacity stated below, and to file, any and all
amendments to this Registration Statement, including any and all post-effective
amendments.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated below on the 18th day of July, 2000.
SIGNATURE TITLE
/s/ Thomas A. Bologna Chairman, President and Chief Executive Officer
------------------------------ (Principal Executive, Financial and Accounting
Thomas A. Bologna Officer)
/s/ Thomas J. Cable Director
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Thomas J. Cable
/s/ Elisabeth L. Evans Director
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Elisabeth L. Evans
/s/ David R. Eyre Director
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David R. Eyre
/s/ Fredric J. Feldman Director
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Fredric J. Feldman
/s/ Gregory D. Phelps Director
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Gregory D. Phelps
/s/ John H. Trimmer Director
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John H. Trimmer
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INDEX TO EXHIBITS
Exhibit
Number Description
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5.1 Opinion of Perkins Coie LLP regarding legality of the
Common Stock being registered
23.1 Consent of Arthur Andersen LLP (Independent Accountants)
23.2 Consent of Perkins Coie LLP (included in opinion filed as
Exhibit 5.1)
24.1 Power of Attorney (see signature page)
99.1 Ostex International, Inc. Amended and Restated 1994 Stock
Option Plan
99.2 Ostex International, Inc. Amended and Restated Directors'
Nonqualified Stock Option Plan
