As filed with the Securities and Exchange Commission on February 27 , 2004
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
BIOVERIS CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
DELAWARE 80-0076765
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
16020 INDUSTRIAL DRIVE
GAITHERSBURG, MARYLAND 20877
(Address of Principal Executive Offices)
2003 STOCK INCENTIVE PLAN
(Full Title of the Plan)
SAMUEL J. WOHLSTADTER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
BIOVERIS CORPORATION
16020 INDUSTRIAL DRIVE
GAITHERSBURG, MARYLAND 20877
(Name and Address of Agent For Service)
(301) 869-9800
(Telephone Number, Including Area Code, of Agent For Service)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Per Aggregate Offering Amount of
to be Registered Registered(1) Share Price Registration Fee
--------------------- ------------------------- ---------------------- ---------------------- ----------------------
--------------------- ------------------------- ---------------------- ---------------------- ----------------------
Common Stock,
$0.001 par value 5,300,000 shares(2) $12.83(3) $67,999,000(3) $8,615.47
per share
(including the
associated
Preferred Stock
Purchase Rights)
===================== ========================= ====================== ====================== ======================
(1) In accordance with Rule 416 under the Securities Act of 1933, as
amended, this registration statement shall be deemed to cover any
additional securities that may from time to time be offered or issued
to prevent dilution resulting from stock splits, stock dividends or
similar transactions.
(2) Consists of 5,300,000 shares issuable under the 2003 Stock Incentive
Plan.
(3) Estimated solely for the purpose of calculating the registration fee
pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as
amended, and based upon the average of the high and low prices of the
Registrant's Common Stock as reported on the Nasdaq National Market on
February 24, 2004.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The information required by Item 1 is included in documents sent or
given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the
"Securities Act").
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The written statement required by Item 2 is included in documents sent
or given to participants in the plan covered by this registration statement
pursuant to Rule 428(b)(1) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The registrant is subject to the informational and reporting
requirements of Sections 13(a), 14, and 15(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). The following documents, which are on file with
the Commission, are incorporated in this registration statement by reference:
(a) The registrant's latest annual report filed pursuant to Section 13(a) or
15(d) of the Exchange Act or the latest prospectus filed pursuant to Rule 424(b)
under the Securities Act that contains audited financial statements for the
registrant's latest fiscal year for which such statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of the Exchange
Act since the end of the fiscal year covered by the document referred to in (a)
above.
(c) The description of the securities contained in the registrant's registration
statement on Form S-4 filed under the Exchange Act, including any amendment or
report filed for the purpose of updating such description.
All documents subsequently filed by the registrant 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 hereby 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 the 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 the purposes of this
registration statement to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any 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.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Hale and Dorr LLP has opined as to the legality of the securities being
offered by this registration statement. Attorneys at Hale and Dorr LLP
beneficially own, in the aggregate, 177,700 shares of the registrant's common
stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL")
empowers a corporation to indemnify its directors and officers and to purchase
insurance with respect to liability arising out of their capacity or status as
directors and officers, provided that this provision 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) arising under Section 174 of the DGCL including for an unlawful
payment of dividend or unlawful stock purchase or redemption or (iv) for any
transaction from which the director derived an improper personal benefit. The
DGCL provides further that the indemnification permitted thereunder shall not be
deemed exclusive of any other rights to which the directors and officers may be
entitled under the corporation's by-laws, any agreement, a vote of stockholders
or otherwise. The registrant's certificate of incorporation provides that to the
full extent authorized by the DGCL, it will indemnify any person who was or is
made a party or is threatened to be made a party to, or is otherwise involved in
any action, suit or proceeding, whether civil, criminal, administrative or
investigative, by reason of the fact that he or she is or was a director or
officer of the registrant or, while serving as a director or officer of the
registrant, is or was at the registrant's request also serving as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all expense, cost, liability and loss
(including attorneys' fees, judgments, fines, amounts paid or to be paid in
settlement, court costs, witness fees, excise taxes or penalties arising under
the Employee Retirement Income Security Act of 1974, as in effect from time to
time incurred in connection with such proceeding) reasonably incurred or
suffered by such person in connection therewith. Such indemnification shall
continue as to a person who has ceased to be a director or officer and will
inure to the benefit of his or her heirs, executors and administrators.
The registrant will pay all expenses incurred in defending any such
proceeding in advance of its final disposition. However, if and to the extent
Delaware law requires, the payment of such expenses incurred by a director or
officer in such person's capacity as a director or officer in advance of the
final disposition of a proceeding, will be made only upon delivery to the
registrant of an undertaking, by or on behalf of the director or officer, to
repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified. The registrant may, to
the extent authorized by its board of directors from time to time, grant rights
to indemnification and pay all expenses incurred in defending any proceeding in
advance of its final disposition, to any of the registrant's employees or agents
on the same terms and conditions upon which it is required to advance the
expenses of the registrant's directors and officers.
The registrant's certificate of incorporation further provides that the
right to indemnification and the advancement of expenses set forth in the
registrant's certificate of incorporation are not exclusive of any other right
that any person may have or acquire under any statute, provision of the
registrant's certificate of incorporation, by-laws, agreement, vote of
stockholders or disinterested directors or otherwise. No repeal or modification
of the provisions of the certificate of incorporation relating to personal
liability and indemnification shall in any way diminish or adversely effect the
rights of any of the registrant's directors, officers, employees or agents in
respect of any occurrence or matter arising prior to the repeal or modification.
The registrant's certificate of incorporation also provides that it may
maintain insurance, at its expense, to protect the registrant and any of its
directors, officers or employees against any such expense, liability or loss
whether or not the registrant would have the power to indemnify that person
against such expense, liability or loss under the DGCL.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
ITEM 9. UNDERTAKINGS.
1. Item 512(a) of Regulation S-K. 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 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; and
(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 (i) and (ii) do not apply if the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic 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.
(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.
2. Item 512(b) of Regulation S-K. 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 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.
3. Item 512(h) of Regulation S-K. 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.
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 Gaithersburg, Maryland, on this 27th day of February, 2004.
BIOVERIS CORPORATION
By: /s/ Samuel J. Wohlstadter
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Samuel J. Wohlstadter
Chairman and Chief Executive Officer
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of BioVeris Corporation
hereby severally constitute and appoint Samuel J. Wohlstadter, Richard J. Massey
and George V. Migausky, 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 on Form S-8
filed herewith and any and all subsequent amendments to said registration
statement, and generally to do all such things in our names and on our behalf in
our capacities as officers and directors to enable BioVeris Corporation 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, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
/s/ Samuel J. Wohlstadter Director, Chairman and Chief February 27, 2004
------------------------- Executive Officer (principal
Samuel J. Wohlstadter executive officer)
/s/ George Migausky Vice President, Chief Financial February 27, 2004
------------------- Officer and Secretary (principal
George Migausky financial and accounting officer)
/s/ Richard J. Massey Director, President and Chief February 27, 2004
--------------------- Operating Officer
Richard J. Massey
/s/ Anthony Rees Director February 27, 2004
----------------
Anthony Rees
/s/ Robert Salsmans Director February 27, 2004
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Robert Salsmans
/s/ Joop Sistermans Director February 27, 2004
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Joop Sistermans
INDEX TO EXHIBITS
Number Description
4.1(1) Certificate of Incorporation of the Registrant
4.2(2) By-Laws of the Registrant
4.3(3) Rights Agreement between the Registrant and Equiserve Trust
Company, N.A., as rights agent dated January 9, 2004
5 Opinion of Hale and Dorr LLP, counsel to the Registrant
23.1 Consent of Hale and Dorr LLP
(included in Exhibit 5)
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Deloitte & Touche LLP
24 Power of attorney (included on the signature pages of this
registration statement)
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(1) Previously filed with the Securities and Exchange Commission as
Exhibits 3.1, 3.2 and 3.3 to the Registrant's Registration Statement on
Form S-4, as amended (File No. 333-109196) and incorporated herein by
reference.
(2) Previously filed with the Securities and Exchange Commission as Exhibit
3.4 to the Registrant's Registration Statement on Form S-4, as amended
(File No. 333-109196) and incorporated herein by reference.
(3) Previously filed with the Securities and Exchange Commission as Exhibit
4.1 to the Registrant's Registration Statement on Form S-4, as amended
(File No. 333-109196) and incorporated herein by reference