As filed with the Securities and Exchange Commission on November 27, 2001
REGISTRATION STATEMENT NO. 333-67392
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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POST-EFFECTIVE AMENDMENT NO. 1
ON FORM S-8 TO FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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INVERNESS MEDICAL INNOVATIONS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 04-3565120
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
51 SAWYER ROAD, SUITE 200
WALTHAM, MASSACHUSETTS 02453
(781) 647-3900
(Address of Principal Executive Offices)
STOCK OPTION AGREEMENTS
OF INVERNESS MEDICAL TECHNOLOGY, INC.
(AS ASSUMED BY INVERNESS MEDICAL INNOVATIONS, INC.)
(Full title of the plan)
RON ZWANZIGER, PRESIDENT
INVERNESS MEDICAL INNOVATIONS, INC.
51 SAWYER ROAD, SUITE 200
WALTHAM, MASSACHUSETTS 02453
(Name and address of agent for service)
(781) 647-3900
(Telephone number, including area code, of agent for service)
With a copy to:
STEPHEN W. CARR, P.C.
GOODWIN PROCTER LLP
53 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 570-1000
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE PRICE REGISTRATION FEE
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Common Stock, $.001 par 929,456(1) (2) (2) (2)
value per share
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(1) This Post-Effective Amendment No. 1 on Form S-8 to the Registration
Statement on Form S-4, as amended (File No. 333-67392) (the
"Registration Statement"), covers 929,456 shares of common stock,
par value $0.001 per share, of Inverness Medical Innovations, Inc.
("Innovations") originally registered on the Registration Statement.
The Registration Statement originally covered a total of 7,648,161
shares of Innovations common stock, which represented the maximum
number of shares that could have been issued in connection with the
split-off (the "Split-Off") of Innovations from Inverness Medical
Technology, Inc. ("Inverness"). The actual number of shares of
Innovations common stock issued to the stockholders of Inverness in the
Split-Off was 6,584,574.
(2) Not applicable. All filing fees payable in connection with the
registration of these securities were paid in connection with the
filing of the Registration Statement on August 13, 2001.
INTRODUCTORY STATEMENT
Inverness Medical Innovations, Inc., a Delaware corporation
("Innovations" or the "Company"), hereby amends its Registration Statement on
Form S-4, as amended (File No. 333-67392), by filing this Post-Effective
Amendment No. 1 on Form S-8 relating to the sale of (i) up to 799,456 shares
of common stock, par value $0.001 per share, of the Company (the "Innovations
Common Stock") issuable upon the exercise of stock options granted under the
following plans of Inverness Medical Technology, Inc. ("Inverness"): the
Selfcare, Inc. 1992 Stock Plan; the Selfcare, Inc. 1994 Incentive and Non
Qualified Stock Option Plan; the Selfcare, Inc. Amended and Restated 1996 Stock
Option and Grant Plan, as amended; the Inverness Medical Technology, Inc.
Amended and Restated 2000 Stock Option and Grant Plan; the Integ Incorporated
(formerly Inomet, Inc.) 1991 Incentive and Stock Option Plan; the Integ
Incorporated 1994 Long-Term Incentive and Stock Option Plan; and the Integ
Incorporated 1996 Director's Stock Option Plan (collectively, the "Plans") and
(ii) up to 130,000 shares of Innovations Common Stock issuable upon the
exercise of Inverness stock options granted outside of the Plans.
Pursuant to an Agreement and Plan of Split-Off and Merger, dated as of
May 23, 2001, by and among Johnson & Johnson, Sunrise Acquisition Corp., a
wholly-owned subsidiary of Johnson & Johnson ("Acquisition Sub"), and Inverness
(of which Innovations was a subsidiary), on November 21, 2001, Acquisition Sub
merged with and into Inverness, with Inverness becoming a wholly-owned
subsidiary of Johnson & Johnson, and all of the shares of Innovations Common
Stock held by Inverness were simultaneously split off to the Inverness
stockholders, at which time Innovations became an independent publicly traded
company. In the transaction, outstanding Inverness options were converted into
options to purchase Innovations Common Stock and Johnson & Johnson common stock,
subject to appropriate adjustments to the number of shares subject to the option
and the exercise price thereof. With respect to the Innovations Common Stock
issuable under these options, the Company has assumed Inverness' obligations
under the stock option agreement governing such options.
The designation of this Post-Effective Amendment as Registration No.
333-67392 denotes that the Post-Effective Amendment relates only to the shares
of Innovations Common Stock issuable upon the exercise of the stock options
described herein and that this is the first Post-Effective Amendment on Form S-8
to the Form S-4 filed with respect to such shares.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part 1 to be contained in the Section 10(a)
prospectus is omitted from this registration statement in accordance with Rule
428 under the Securities Act of 1933, as amended (the "Securities Act"), and the
Introductory Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference the following documents
which have previously been filed with the Securities and Exchange Commission
(the "Commission"):
(a) The Company's prospectus filed with the Commission as
part of the Company's Registration Statement on Form
S-4, as amended (File No. 333-67392); and
(b) The description of the Company's Common Stock
contained in its Registration Statement on Form 8-A,
filed with the Commission on November 21, 2001, as
amended, under Section 12 of the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and any
amendments or reports filed for the purpose of
updating such description.
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In addition, all documents subsequently filed with the Commission 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 hereto which indicates that
all securities offered hereunder 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 a 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.
The validity of the shares of Common Stock registered by the Company
hereby will be passed upon for the Company by Goodwin Procter LLP, Boston,
Massachusetts. The owners and presidents of two professional corporations which
are partners in the firm of Goodwin Procter LLP beneficially own an aggregate of
approximately 10,028 shares of Common Stock and 799 shares of Common Stock,
respectively.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law provides that a
corporation may indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, other than
an action by or in the right of the corporation, by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation or is
or was serving at the corporation's request as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in
connection with the action, suit or proceeding if the person acted in good faith
and in a manner the person reasonably believed to be in or not opposed to the
best interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The power to indemnify applies to actions brought by or in the right
of the corporation as well, but only to the extent of expenses, including
attorneys' fees but excluding judgments, fines and amounts paid in settlement,
actually and reasonably incurred by the person in connection with the defense or
settlement of the action or suit. And with the further limitation that in these
actions, no indemnification shall be made in the event of any adjudication of
negligence or misconduct in the performance of the person's duties to the
corporation, unless a court believes that in light of all the circumstances
indemnification should apply.
Article V of the Company's by-laws provides that the Company shall, to
the extent legally permitted, indemnify each person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding by reason of the fact that such person is or was, or has
agreed to become, a director or officer of the Company, or is or was serving, or
has agreed to serve, at the request of the Company, as a director, officer,
trustee, partner, employee or agent of, or in a similar capacity with, another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise. The indemnification provided for in Article V is expressly not
exclusive of any other rights to which those seeking indemnification may be
entitled under any law, agreement or vote of stockholders or disinterested
directors or otherwise, and shall inure to the benefit of the heirs, executors
and administrators of such persons.
Section 145(g) of the Delaware General Corporation Law and Article V of
the by-laws of the Company provide that the Company shall have the power to
purchase and maintain insurance on behalf of its officers, directors, employees
and agents, against any liability asserted against and incurred by such persons
in any such capacity.
The Company has obtained insurance covering its directors and officers
against losses and insuring the Company against certain of its obligations to
indemnify its directors and officers.
Section 102(b)(7) of the General Corporation Law of the State of
Delaware provides that a corporation may eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such
provisions shall not eliminate or limit the liability of a director (i) for any
breach of the director's duty of loyalty to the corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under section 174 of the General
Corporation Law of the State of Delaware regarding the unlawful payment of
dividends,
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or (iv) for any transaction from which the director derived an improper personal
benefit. No such provision shall eliminate or limit the liability of a director
for any act or omission occurring prior to the date when such provision becomes
effective.
Pursuant to the Delaware General Corporation Law, Article VII of the
certificate of incorporation of the Company eliminates a director's personal
liability for monetary damages to the Company and its stockholders for breach of
fiduciary duty as a director, except in circumstances involving a breach of the
director's duty of loyalty to the Company or its stockholders, acts or omissions
not in good faith, intentional misconduct, knowing violations of the law,
self-dealing or the unlawful payment of dividends or repurchase of stock.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Form of Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.1 to
Amendment No. 1 to the Company's Registration Statement on
Form S-4 (File No. 333-67392)).
4.2 Form of Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to the Company's Registration Statement on Form S-4 (File No.
333-67392)).
5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on the signature page hereto).
ITEM 9. UNDERTAKINGS.
The 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 of 1933, as amended (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 percent 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 (1)(i) and (1)(ii) do not apply if
the information required to be included in a post-effective amendment by such
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Exchange Act
that are incorporated by reference in the registration statement.
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(2) 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.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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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
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 Waltham, The Commonwealth of Massachusetts, on
November 26, 2001.
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Ron Zwanziger
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Ron Zwanziger
President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Inverness Medical Innovations, Inc., hereby severally constitute
Duane L. James and Ron Zwanziger, and each of them singly, our true and lawful
attorneys with full power to them, and each of them singly, to sign for us and
in our names in the capacities indicated below, the registration statement filed
herewith and any and all amendments to said registration statement, and
generally to do all things in our names and in our capacities as officers and
directors to enable Inverness Medical Innovations, Inc. to comply with the
provisions of the Securities Act of 1933, as amended, and all requirements of
the Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, the
registration statement has been signed by the following persons in the
capacities and as of the dates indicated.
SIGNATURE TITLE DATE
/s/ Ron Zwanziger Chairman of the Board, President and November 26, 2001
- ------------------------------------ Chief Executive Officer
Ron Zwanziger (Principal Executive Officer)
/s/ Duane L. James Vice President of Finance and November 26, 2001
- ------------------------------------ Treasurer
Duane L. James (Principal Financial Officer and
Principal Accounting Officer)
/s/ David Scott Director November 26, 2001
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David Scott, Ph.D.
/s/ Ernest A. Carabillo, Jr. Director November 26, 2001
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Ernest A. Carabillo, Jr.
/s/ Carol R. Goldberg Director November 26, 2001
- ------------------------------------
Carol R. Goldberg
/s/ Robert P. Khederian Director November 26, 2001
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Robert P. Khederian
Director
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John F. Levy
/s/ Peter Townsend Director November 26, 2001
- --------------------------------------
Peter Townsend
/s/ Alfred M. Zeien Director November 26, 2001
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Alfred M. Zeien
EXHIBIT INDEX
Exhibit No. Description
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4.1 Form of Amended and Restated Certificate of Incorporation of
the Company (incorporated by reference to Exhibit 3.1 to
Amendment No. 1 to the Company's Registration Statement on
Form S-4 (File No. 333-67392)).
4.2 Form of Amended and Restated By-Laws of the Company
(incorporated by reference to Exhibit 3.2 to Amendment No. 1
to the Company's Registration Statement on Form S-4 (File No.
333-67392)).
5.1 Opinion of Goodwin Procter LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin Procter LLP (included in Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP, Independent Accountants.
24.1 Powers of Attorney (included on the signature page hereto).