AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 5, 1998
REGISTRATION NO. 333-___________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_____________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIOMAGNETIC TECHNOLOGIES, INC.
(Exact name of issuer as specified in its charter)
CALIFORNIA 95-2647755
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
9727 PACIFIC HEIGHTS BOULEVARD
SAN DIEGO, CALIFORNIA 92121
(Address of Principal Executive Office) (Zip Code)
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1997 STOCK INCENTIVE PLAN
1992 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
______________________
D. SCOTT BUCHANAN
President and Chief Executive Officer
BIOMAGNETIC TECHNOLOGIES, INC.
9727 PACIFIC HEIGHTS BOULEVARD
SAN DIEGO, CALIFORNIA 92121 (619) 453-6300
(Name, address and telephone number, including area code, of agent for service)
______________________
Copies to:
Faye H. Russell, Esq.
BROBECK, PHLEGER & HARRISON LLP
550 West C Street, Suite 1300
San Diego, California 92101
(619) 234-1966
______________________
This Registration Statement shall become effective immediately
upon filing with the Securities and Exchange Commission
and sales of the registered securities will begin as soon
as reasonably practicable after such effective date.
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CALCULATION OF REGISTRATION FEE
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Title of Proposed maximum Proposed maximum
securities to Amount to be offering price aggregate Amount of
be registered registered per share offering price registration fee
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1997 Stock Incentive Plan
Common Stock, no par value 3,000,000(1) $.54(2) $1,620,000(2) $478.00
1992 Employee Stock Purchase Plan
Common Stock, no par value 450,000(1) $.54(2) $ 243,000(2) $295.00
TOTAL: $773.00
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(1) This Registration Statement shall also cover any additional shares of
Common Stock which become issuable under (a) the 1997 Stock Incentive
Plan or (b) the 1992 Employee Stock Purchase Plan by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without the receipt of consideration which results in an increase
in the number of the Company's outstanding shares of Common Stock.
(2) Estimated solely for the purposes of computing the amount of registration
fee in accordance with Rule 457(h) under the Securities Act of 1933, as
amended, on the basis of the average of the high and low selling prices per
share of the Registrant's Common Stock on July 31, 1998, as reported on
the Nasdaq National Market.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Biomagnetic Technologies, Inc. (the "Registrant" or "Company") hereby
incorporates by reference into this Registration Statement the following
documents previously filed with the Securities and Exchange Commission (the
"Commission"):
(a) the Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1997;
(b) the Registrant's Annual Report on Form 11-K for the fiscal year ended
September 30, 1997;
(c) the Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1997;
(d) the Registrant's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(e) the Registrant's Current Report on Form 8-K dated September 26,
1997, filed with the Commission on October 2, 1997;
(f) the Registrant's Current Report on Form 8-K dated December 16,
1997, filed with the Commission on December 24, 1997;
(g) the Registrant's Proxy Statement dated February 17, 1998 in connection
with the Annual Meeting of Shareholders held on March 25, 1998; and
(h) the section entitled "Description of Capital Stock" contained in the
Post-Effective Amendment No. 1 to the Registrant's Registration
Statement on Form S-1, filed with the Commission May 8, 1992, in
which there is described the terms, rights and provisions applicable
to the Registrant's Common Stock.
All reports and definitive proxy or information statements filed
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934, as amended (the "1934 Act") after the date of this Registration
Statement and prior to the filing of a post-effective amendment which
indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the date of filing of such documents. Any statement contained in
a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. DESCRIPTION OF SECURITIES
Not applicable.
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Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Not applicable.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
(a) Section 317 of the California General Corporation Law provides for
the indemnification to officers and directors of the Registrant and its
subsidiaries against expenses, judgments, fines and amounts paid in
settlement under certain conditions and subject to certain limitations.
(b) Article IV, Section 10 of the Restated Bylaws (the "Bylaws") of the
Registrant provides that the Registrant shall have power to indemnify any
person who is or was an agent of the Registrant as provided in Section 317 of
the California General Corporation Law. The rights to indemnity thereunder
continue as to a person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and
administrators of the person. In addition, expenses incurred by a director
or officer in defending a civil or criminal action, suit or proceeding by
reason of the fact that he or she is or was a director or officer of the
Registrant (or was serving at the Registrant's request as a director or
officer of another corporation) shall be paid by the Registrant in advance of
the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he or she is not entitled to be
indemnified by the Registrant as authorized by the relevant section of the
California General Corporation Law.
(c) Article V of the Registrant's Fourth Restated Articles of
Incorporation, as amended, (the "Articles of Incorporation") provides that
the liability of the directors of the Registrant for monetary damages shall
be eliminated to the fullest extent permissible under California law.
Accordingly, a director will not be liable for monetary damages for breach of
duty to the Registrant or its shareholders in any action brought by or in the
right of the Registrant. However, a director remains liable to the extent
required by law (i) for acts or omissions that involve intentional misconduct
or a knowing and culpable violation of law, (ii) for acts or omissions that a
director believes to be contrary to the best interests of the Registrant or
its shareholders or that involve the absence of good faith on the part of the
director, (iii) for any transaction from which a director derived an improper
personal benefit, (iv) for acts or omissions that show a reckless disregard
for the director's duty to the Registrant or its shareholders in
circumstances in which the director was aware, or should have been aware, in
the ordinary course of performing a director's duties, of a risk of serious
injury to the Registrant or its shareholders, (v) for acts or omissions that
constitute an unexcused pattern of inattention that amounts to an abdication
of the director's duty to the Registrant or its shareholders, (vi) for any
act or omission occurring prior to the date when the exculpation provision
became effective and (vii) for any act or omission as an officer,
notwithstanding that the officer is also a director or that his or her
actions, if negligent or improper, have been ratified by the directors. The
effect of the provisions in the Articles of Incorporation is to eliminate the
rights of the Registrant and its shareholders (through shareholders'
derivative suits on behalf of the Registrant) to recover monetary damages
against a director for breach of duty as a director, including breaches
resulting from negligent behavior in the context of transactions involving a
change of control of the Registrant or otherwise, except in the situations
described in clauses (i) through (vii) above. These provisions will not
alter the liability of directors under federal securities laws.
(d) Pursuant to authorization provided under the Articles of
Incorporation, the Registrant has entered into indemnification agreements
with each of its present and certain of its former directors. The Registrant
has also entered into similar agreements with certain of the Registrant's
executive officers who are not directors. Generally, the indemnification
agreements attempt to provide the maximum protection permitted by California
law as it may be amended from time to time. Moreover, the indemnification
agreements provide for certain additional indemnification. Under such
additional indemnification
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provisions, however, an individual will not receive indemnification for
judgments, settlements or expenses if he or she is found liable to the
Registrant (except to the extent the court determines he or she is fairly and
reasonably entitled to indemnity for expenses), for settlements not approved
by the Registrant or for settlements and expenses if the settlement is not
approved by the court. The indemnification agreements provide for the
Registrant to advance to the individual any and all reasonable expenses
(including legal fees and expenses) incurred in investigating or defending
any such action, suit or proceeding. In order to receive an advance of
expenses, the individual must submit to the Registrant copies of invoices
presented to him or her for such expenses. Also, the individual must repay
such advances upon a final judicial decision that he or she is not entitled
to indemnification. The Registrant's Bylaws contain a provision of similar
effect relating to advancement of expenses to a director or officer, subject
to an undertaking to repay if it is ultimately determined that
indemnification is unavailable.
(e) There is directors' and officers' liability insurance now in effect
which insures directors and officers of the Registrant.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED
Not Applicable.
Item 8. EXHIBITS
EXHIBIT NUMBER EXHIBIT
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4.1 Instruments Defining Rights of Shareholders. Reference is made to
Registrant's Registration Statement No. 33-81294 on Form S-1,
which is incorporated herein by reference pursuant to Item 3(g) of
this Registration Statement.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit
5.1).
23.2 Consent of Independent Accountants, Arthur Andersen LLP.
23.3 Consent of Independent Accountants, PricewaterhouseCoopers LLP
24.1 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2 1997 Stock Incentive Plan Form of Stock Option Agreement and
Notice of Grant.
99.3 1992 Employee Stock Purchase Plan, as amended.
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 of 1933, (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 clauses (1)(i) and (1)(ii) shall not apply if the
information required to be included in a post-effective amendment by those
clauses is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference into this Registration Statement; (2) that for the
purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered
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therein and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof; and (3) to remove from
registration by means of a post-effective amendment any of the securities
being registered which remain unsold upon the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
C. Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or controlling
persons of the Registrant pursuant to the indemnity provisions incorporated
by reference in Item 6, or otherwise, the Registrant has been informed that
in the opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the 1933 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 1933 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 San Diego, State of California, on
this 5th day of August, 1998.
BIOMAGNETIC TECHNOLOGIES, INC.
By /s/ D. Scott Buchanan
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D. SCOTT BUCHANAN
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS:
That the undersigned officers and directors of Biomagnetic
Technologies, Inc. a California corporation, do hereby constitute and appoint
D. Scott Buchanan and Eugene Hirschkoff, and each of them, the lawful
attorneys-in-fact and agents with full power and authority to do any and all
acts and things and to execute any and all instruments which said attorneys
and agents, and either one of them, determine may be necessary or advisable
or required to enable said corporation to comply with the Securities Act of
1933, as amended, and any rules or regulations or requirements of the
Securities and Exchange Commission in connection with this Registration
Statement. Without limiting the generality of the foregoing power and
authority, the powers granted include the power and authority to sign the
names of the undersigned officers and directors in the capacities indicated
below to this Registration Statement, to any and all amendments, both
pre-effective and post-effective, and supplements to this Registration
Statement, and to any and all instruments or documents filed as part of or in
conjunction with this Registration Statement or amendments or supplements
thereof, and each of the undersigned hereby ratifies and confirms that all
said attorneys and agents, or either of them, shall do or cause to be done by
virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of
Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ D. Scott Buchanan Director, President, and Chief
- --------------------------- Executive Officer August 5, 1998
D. Scott Buchanan (Principal Executive and Operating
Officer)
/s/ Herman Bergman Director, Vice President, Finance August 5, 1998
- --------------------------- Chief Financial Officer and Secretary
Herman Bergman (Principal Financial Officer)
/s/ Martin P. Egli Director August 5, 1998
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Martin P. Egli
/s/ Enrique Maso Director August 5, 1998
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Enrique Maso
/s/ Rodolfo Llinas Director August 5, 1998
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Rodolfo Llinas
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
EXHIBITS
TO
FORM S-8
UNDER
SECURITIES ACT OF 1933
BIOMAGNETIC TECHNOLOGIES, INC.
EXHIBIT INDEX
Exhibit
Number Exhibit
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4.1 Instruments Defining Rights of Shareholders. Reference is made to
Registrant's Registration Statement No. 33-81294 on Form S-1, which is
incorporated herein by reference pursuant to Item 3(g) of this
Registration Statement.
5.1 Opinion and consent of Brobeck, Phleger & Harrison LLP.
23.1 Consent of Brobeck, Phleger & Harrison LLP (contained in Exhibit 5.1).
23.2 Consent of Independent Accountants, Arthur Andersen LLP.
23.3 Consent of Independent Accountants, PricewaterhouseCoopers LLP.
24.1 Power of Attorney. Reference is made to page II-5 of this
Registration Statement.
99.1 1997 Stock Incentive Plan.
99.2 1997 Stock Incentive Plan Form of Stock Option Agreement and
Notice of Grant.
99.3 1992 Employee Stock Purchase Plan, as amended.