As filed
with the Securities and Exchange Commission on December 30,
2008 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
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77-0213001
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(State
of Incorporation)
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(I.R.S.
Employer Identification No.)
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3240
Whipple Road
Union
City, California 94587
(Address
of principal executive offices)
Abaxis,
Inc.
2005
Equity Incentive Plan
(Full
title of the plan)
Clinton
H. Severson
President,
Chief Executive Officer and Chairman of the Board
Abaxis,
Inc.
3240
Whipple Road
Union
City, California 94587
(510)
675-6500
(Name,
address and telephone number, including area code, of agent for
service)
Copies
to:
Jodie
M. Bourdet, Esq.
Cooley
Godward Kronish llp
101
California Street, 5
th
Floor
San
Francisco, California 94111-5800
(415)
693-2000
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer
¨
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Accelerated
filer
x
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Non-accelerated
filer
¨
(Do not check if a smaller reporting company)
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Smaller
reporting company
¨
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CALCULATION
OF REGISTRATION FEE
Title
of Securities
to
be Registered
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Amount
to be Registered
(1)
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Proposed
Maximum
Offering
Price
per Share
(2)
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Proposed
Maximum
Aggregate
Offering
Price
(2)
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Amount
of
Registration
Fee
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Stock
Options and Common Stock
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500,000
shares
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$15.055
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$7,527,500
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$295.83
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(1)
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Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement shall also cover any
additional shares of the Company’s common stock that become issuable under
the 2005 Equity Incentive Plan by reason of any stock dividend, stock
split, recapitalization or other similar transaction effected without the
Company’s receipt of consideration that results in an increase in the
number of the Company’s outstanding shares of common
stock.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee
pursuant to Rule 457(h) of the Securities Act. The price per
share and aggregate offering price are based upon the average of the high
and low prices
of Registrant’s
common stock on December 26, 2008 as reported on the Nasdaq Global Market,
in accordance with Rule 457(c) of the Securities
Act.
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EXPLANATORY
NOTE
This Registration Statement on Form S-8
is being filed for the purpose of registering an additional 500,000 shares of
the Registrant’s common stock to be issued pursuant to the Registrant’s 2005
Equity Incentive Plan.
INCORPORATION
BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8
The
contents of Registration Statement on Form S-8 (File No. 333-131703)
filed with the Securities and Exchange Commission (“SEC”) on February 9, 2006
are incorporated herein by reference and made a part hereof.
EXHIBITS
Exhibit
Number
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Description
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4.1
(1)
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Amended
and Restated Articles of Incorporation
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4.2
(2)
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Certificate
of Amendment of Amended and Restated Articles of
Incorporation
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4.3
(3)
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By-laws
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4.4
(4)
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Amendment
to the By-laws
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4.5
(5)
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Registration
Rights Agreement, dated as of March 29, 2002
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5.1
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Opinion
of Cooley Godward Kronish LLP
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23.1
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Consent
of Independent Registered Public Accounting Firm
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23.2
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Consent
of Cooley Godward Kronish LLP (included in Exhibit 5.1 to this
Registration Statement)
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24.1
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Power
of Attorney (included on the signature page of this Registration
Statement)
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99.1
(6)
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Abaxis,
Inc. 2005 Equity Incentive Plan, as amended as of October 28,
2008
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(1)
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Filed
with the SEC as an exhibit to the Registrant’s Annual Report on Form 10-K
for the fiscal year ended March 31, 1993 and incorporated herein by
reference.
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(2)
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Filed
with the SEC as an exhibit to the Registrant’s Quarterly Report on Form
10-Q for the quarterly period ended December 31, 1996 and incorporated
herein by reference.
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(3)
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Filed
with the SEC as an exhibit to the Registrant’s Registration Statement No.
33-44326 on December 11, 1991 and incorporated herein by
reference.
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(4)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on July 30, 2007 and incorporated herein by
reference.
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(5)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on May 13, 2002 and incorporated herein by
reference.
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(6)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on November 3, 2008 and incorporated herein by
reference.
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UNDERTAKINGS
1.
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The
undersigned registrant hereby
undertakes:
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(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 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. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the “Calculation of
Registration Fee” table in the effective registration statement.
(iii)
To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided, however,
that
paragraphs (a)(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
reports filed with or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated
by reference in the registration statement.
(b)
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 herein, 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
offering.
(d)
That,
for the purpose of determining liability of the registrant under the Securities
Act to any purchaser in the initial distribution of the securities, the
undersigned registrant undertakes that in a primary offering of securities of
the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser:
(i)
Any
preliminary prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii)
Any
free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
(iii)
The
portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided
by or on behalf of the undersigned registrant; and
(iv)
Any
other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
2.
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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 herein,
and the offering of such securities at that time shall be deemed to be the
initial
bona fide
offering thereof.
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3.
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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.
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SIGNATURES
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 Union City, State of California, on December 30,
2008.
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Abaxis, Inc.
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By:
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/s/ Clinton
H. Severson
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Clinton
H. Severson
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President,
Chief Executive Officer and Chairman of the Board
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POWER
OF ATTORNEY
Know All
Persons By These Presents
, that each person whose signature appears below
constitutes and appoints Clinton H. Severson and Alberto R. Santa Ines, and each
or any one of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities and on the dates
indicated.
Signature
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Title
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Date
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/s/
CLINTON H. SEVERSON
Clinton
H. Severson
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President,
Chief Executive Officer and Chairman of the Board
(
Principal Executive
Officer
)
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December
30, 2008
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/s/
ALBERTO R. SANTA INES
Alberto
R. Santa Ines
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Chief
Financial Officer and Vice President of Finance
(
Principal Financial and
Accounting Officer
)
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December
30, 2008
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/s/
RICHARD
J. BASTIANI, PH.D.
Richard
J. Bastiani, Ph.D.
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Director
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December
30, 2008
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/s/
HENK J. EVENHUIS
Henk
J. Evenhuis
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Director
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December
30, 2008
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/s/
BRENTON
G.A.
HANLON
Brenton
G.A. Hanlon
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Director
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December
30, 2008
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/s/
PRITHIPAL
SINGH,
PH.D.
Prithipal
Singh, Ph.D.
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Director
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December
30, 2008
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/s/
ERNEST S.
TUCKER III, M.D.
Ernest
S. Tucker III, M.D.
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Director
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December
30,
2008
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EXHIBIT
INDEX
Exhibit
Number
|
Description
|
4.1
(1)
|
Amended
and Restated Articles of Incorporation
|
4.2
(2)
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Certificate
of Amendment of Amended and Restated Articles of
Incorporation
|
4.3
(3)
|
By-laws
|
4.4
(4)
|
Amendment
to the By-laws
|
4.5
(5)
|
Registration
Rights Agreement, dated as of March 29, 2002
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5.1
|
Opinion
of Cooley Godward Kronish LLP
|
23.1
|
Consent
of Independent Registered Public Accounting Firm
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23.2
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Consent
of Cooley Godward Kronish LLP (included in Exhibit 5.1 to this
Registration Statement)
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24.1
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Power
of Attorney (included on the signature page of this Registration
Statement)
|
99.1
(6)
|
Abaxis,
Inc. 2005 Equity Incentive Plan, as amended as of October 28,
2008
|
(1)
|
Filed
with the SEC as an exhibit to the Registrant’s Annual Report on Form 10-K
for the fiscal year ended March 31, 1993 and incorporated herein by
reference.
|
(2)
|
Filed
with the SEC as an exhibit to the Registrant’s Quarterly Report on Form
10-Q for the quarterly period ended December 31, 1996 and incorporated
herein by reference.
|
(3)
|
Filed
with the SEC as an exhibit to the Registrant’s Registration Statement No.
33-44326 on December 11, 1991 and incorporated herein by
reference.
|
(4)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on July 30, 2007 and incorporated herein by
reference.
|
(5)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on May 13, 2002 and incorporated herein by
reference.
|
(6)
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Filed
with the SEC as an exhibit to the Registrant’s Current Report on Form 8-K
on November 3, 2008 and incorporated herein by
reference.
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Abaxis, Inc. (delisted) (NASDAQ:ABAX)
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