As filed with the Securities and Exchange Commission on April 6, 2020

Registration No. 333-_______

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

BIOANALYTICAL SYSTEMS, INC.

(Exact name of registrant as specified in its charter)

   

Indiana

(State or other jurisdiction of

incorporation or organization)

35-1345024

(I.R.S. Employer

Identification No.)

 

2701 Kent Avenue

West Lafayette, Indiana 47906-1382

(Address of Principal Executive Offices) (Zip Code)

    

Amended and Restated Bioanalytical Systems, Inc. 2018 Equity Incentive Plan

(Full title of the plan)

 

Robert Leasure, Jr.

President and Chief Executive Officer

Bioanalytical Systems, Inc.

2701 Kent Avenue

West Lafayette, Indiana 47906-1382

(765) 463-4527

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Copies to:

Stephen J. Hackman, Esq.

Ice Miller LLP

One American Square, Suite 2900

Indianapolis, Indiana 46282-0200

(317) 236-2289

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company.  See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

   
Large accelerated filer ¨ Accelerated filer ¨
Non-accelerated filer x Smaller reporting company x
 

Emerging growth company ¨

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o

 

 

CALCULATION OF REGISTRATION FEE

           

 

 

Title of

Securities to be Registered

 

Amount

to be

Registered (1)(2)

Proposed

Maximum

Offering Price

per Share (3)(4)

Proposed

Maximum

Aggregate

Offering Price (3)(4)

 

 

Amount of

Registration Fee (4)

 

 

Common Shares, no par value

 

700,000 shares

 

$3.31

 

$2,317,000

 

$300.75

 
   
(1) Represents 700,000 additional shares issuable under the Bioanalytical Systems, Inc. 2018 Equity Incentive Plan.
   
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement is deemed to include additional shares issuable under the terms of the Plan to prevent dilution resulting from any future stock split, stock dividend or similar transaction.
   
(3) Estimated solely for the purpose of calculating the registration fee.
   
(4) Calculated pursuant to Rule 457(c) and (h). Accordingly, the price per share of the common stock offered hereunder pursuant to the Plan is based on 700,000 additional shares reserved for issuance under the Plan at a price per share of $3.31, which is the average of the highest and lowest selling prices for the shares on NASDAQ on April 2, 2020.
             

 

 

 

 

STATEMENT OF INCORPORATION BY REFERENCE

 

This registration statement on Form S-8 is being filed for the purpose of registering the offer and sale of an additional 700,000 Common Shares, no par value per share, of Bioanalytical Systems, Inc. (the “Registrant”) which may be issued under the Registrant’s Amended and Restated Bioanalytical Systems, Inc. 2018 Equity Incentive Plan. In accordance with General Instruction E to Form S-8, this registration statement on Form S-8 registers additional securities of the same class as other securities for which registration statements on Form S-8 have previously been filed and are effective. Accordingly, this registration statement incorporates by reference the contents of the Registrant’s following registration statements on Form S-8 previously filed with the Securities and Exchange Commission (the “SEC”), except in each case for Item 8, Exhibits:

 

(1)Registration Statement on Form S-8 (File No. 333-228747), filed with the SEC on December 11, 2018 by the Registrant, relating to the Registrant’s 2008 Stock Option Plan as Amended and Restated in the form of the Amended and Restated Bioanalytical Systems 2018 Equity Incentive Plan; and

 

(2)Registration Statement on Form S-8 (File No. 333-153734), filed with the SEC on September 30, 2008 by the Registrant, relating to the Registrant’s 2008 Stock Option Plan.

 

Item 8. Exhibits.

 

The following documents are included as part of this Registration Statement.

 

Exhibit Number   Description
     
4.1    Second Amended and Restated Articles of Incorporation of Bioanalytical Systems, Inc. as amended through May 9, 2011 (incorporated by reference to Exhibit 3.1 to Form 10-Q for the quarter ended June 30, 2011)
4.2    Second Amended and Restated Bylaws of Bioanalytical Systems, Inc., as subsequently amended (incorporated by reference to Exhibit 3.2 to Form 10-K for the year ended September 30, 2015)
4.3    Specimen Certificate for Common Shares (incorporated by reference to Exhibit 4.1 to Registration Statement on form S-1, Registration No. 333-36429)
4.4   Certificate of Designation of Preferences, Rights, and Limitations of Convertible Preferred Shares (incorporated by reference to Exhibit 3.1 on Form 8-K, dated May 12, 2011)
4.5   Specimen Certificate for 6% Series A Convertible Preferred Shares (incorporated by reference to Exhibit 4.3 to Registration Statement on Form S-1, Registration No. 333-172508)
4.6   Amended and Restated Bioanalytical Systems, Inc. 2018 Equity Incentive Plan, as amended (incorporated by reference to Appendix A to the registrant’s Definitive Proxy Statement filed January 28, 2020)
5.1*   Opinion of Ice Miller LLP
23.1*   Consent of RSM US LLP
23.2*   Consent of Soukup, Bush & Associates P.C.
23.3   Consent of Ice Miller LLP (contained in Exhibit 5.1 hereto)
24.1   Powers of Attorney (contained in the signature pages to this Registration Statement)

 

* Filed herewith

 

1 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 West Lafayette, Indiana, on the 6th day of April, 2020.

 

 

BIOANALYTICAL SYSTEMS, INC.

   
   
  By: /s/ Robert L. Leasure, Jr.
   

Robert L. Leasure, Jr.

President and

Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each individual whose signature appears below hereby constitutes and appoints Robert Leasure, Jr. and Beth A. Taylor, and each of them, each with full power to act without the other, his/her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution for him/her and in his/her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, and to file the same with all exhibits thereto and other documents in connection therewith, with the Commission, granting unto each of said attorneys-in-fact and agents 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/she might or could do in person hereby ratifying and confirming that each of said attorneys-in-fact and agents or his/her substitutes may lawfully do or cause to be done by virtue hereof.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature   Capacity   Date

 

/s/ Robert L. Leasure, Jr.

       
Robert L. Leasure, Jr.  

President and Chief Executive Officer, Director

(Principal Executive Officer)

   April 6, 2020
/s/ Beth A. Taylor        
Beth A. Taylor  

Vice President – Finance and Chief Financial Officer

(Principal Financial Officer and Accounting Officer)

   April 6, 2020
/s/ Gregory C. Davis        
Gregory C. Davis, Ph.D.   Chairman of the Board, Director    April 6, 2020
         
/s/ Richard A. Johnson        
Richard A. Johnson, Ph.D.   Director   April 6, 2020
         
/s/ R. Matthew Neff        
R. Matthew Neff   Director    April 6, 2020
         
/s/ John E. Sagartz        
John E. Sagartz, DVM, Ph.D., DAVP   Director    April 6, 2020

 

S-1 

 

Exhibit 5.1

 

 

 

 

April 6, 2020 

 

 

 

Board of Directors

Bioanalytical Systems, Inc.
2701 Kent Avenue
West Lafayette, Indiana 47906-1382

 

RE:Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as counsel to Bioanalytical Systems, Inc., an Indiana corporation (the "Company"), in connection with the filing of a Registration Statement on Form S-8 (the "Registration Statement") with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act"), relating to the registration of 700,000 of the Company's authorized but unissued common shares (the "Shares") which may be issued under the Amended and Restated Bioanalytical Systems, Inc. 2018 Equity Incentive Plan, as amended (amendment approved by the Board of Directors as of December 4, 2019) (the "Plan"). Unless otherwise defined herein, capitalized terms used herein shall have the meanings assigned to them in the Registration Statement.

 

We have investigated those questions of law as we have deemed necessary or appropriate for purposes of this opinion. We have also examined originals, or copies certified or otherwise identified to our satisfaction, of those documents, corporate or other records, certificates and other papers that we deemed necessary to examine for purposes of this opinion, including:

 

1.The Registration Statement;

 

2.The Plan;

 

3.A copy of the Second Amended and Restated Articles of Incorporation of the Company, together with all amendments thereto;

 

4.A copy of the Second Amended and Restated Bylaws of the Company, as amended to date;

 

5.An Officer's Certificate of even date herewith as to certain factual matters;

 

6.Resolutions relating to the approval of the Plan adopted by the Company's Board of Directors and shareholders (the "Resolutions"); and

 

 

 

 

 

 

 

 

Board of Directors
Bioanalytical Systems, Inc.
April 6, 2020

Page 2

 

 

7.Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth in this letter, subject to the assumptions, limitations and qualifications stated herein.

 

We have also relied, without investigation as to the accuracy thereof, on other certificates of and oral and written communications from public officials and officers of the Company.

 

For purposes of this opinion, we have assumed (i) the genuineness of all signatures; (ii) the authenticity of all documents submitted to us as originals and the conformity to authentic originals of all documents submitted to us as certified or photostatic copies; (iii) that the Resolutions have not been and will not be amended, altered or superseded before the filing of the Registration Statement; and (iv) that the registration requirements of the Securities Act and all applicable requirements of state laws regulating the offer and sale of the Shares will have been duly satisfied. The opinion set forth herein is limited to the Indiana Business Corporation Law.

 

Based upon the foregoing and subject to the qualifications set forth in this letter, we are of the opinion that the Shares are duly authorized and, if and when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.

 

We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the filing of a copy of this opinion as Exhibit 5.1 to the Registration Statement. In giving this consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission promulgated thereunder.

 

  Very truly yours,
   
  /s/ Ice Miller LLP

  

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of Bioanalytical Systems, Inc. of our report dated December 26, 2019 relating to the consolidated financial statements of Bioanalytical Systems, Inc. appearing in the Annual Report on Form 10-K of Bioanalytical Systems, Inc. for the year ended September 30, 2019.

 

/s/ RSM US LLP

 

Indianapolis, Indiana

April 6, 2020

 

 

 

 

Exhibit 23.2

 

 

 

 

CONSENT OF INDEPENDENT ACCOUNTING FIRM

 

 

To the Directors of Bioanalytical Systems, Inc. (the “Company”):

 

 

We consent to the incorporation by reference in this Registration Statement on Form S-8 of the Company of our February 5, 2020 independent audit report on Pre-Clinical Research Services, Inc.’s (“PCRS”) balance sheet as of December 31, 2018, and its related statements of income, stockholder’s equity, and cash flows for the year then ended and also consent to the reference or inclusion of our February 6, 2020 review report on PCRS’s balance sheet as of September 30, 2019, and the related statements of income, stockholder’s equity, and cash flows for the nine months then ended, which appear in the Company’s February 14, 2020 Form 8-K/A.

 

We have not audited or reviewed any financial statements of PCRS for any period subsequent to September 30, 2019. Therefore, we are unable to and do not express any opinion or assurance on the financial position, results of operations, or cash flows subsequent to September 30, 2019.

 

 

Yours very truly,

 

/s/ Soukup, Bush &Associates P.C.              

Fort Collins, Colorado

April 6, 2020