<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 19, 2000
REGISTRATION NO. 333-32504
=============================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
====================
AMENDMENT NO. 1
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
====================
BIOSPHERICS INCORPORATED
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
52-0849320
(I.R.S. employer identification number)
12051 Indian Creek Court, Beltsville, Maryland 20705,
(301) 419-3900
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
====================
Gilbert V. Levin
President and Chief Executive Officer
Biospherics Incorporated
12051 Indian Creek Court
Beltsville, Maryland 20705
(301) 419-3900
(301) 210-4908 (Fax)
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
====================
<PAGE>
COPIES TO:
James E. Baker, Jr.
Baxter, Baker, Sidle & Conn, P.A.
120 E. Baltimore Street
Baltimore, Maryland 21202
(410) 385-8122
(410) 230-3801 (Fax)
====================
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
As soon as practicable after the effective date of this Registration Statement.
====================
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. / /
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. / x /
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act of 1933, as amended, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=============================================================================================
Proposed Proposed Amount
Title of each class Amount maximum maximum of
of securities to be to be offering price aggregate registration
registered registered (1) per share (2) offering price fee
=============================================================================================
<S> <C> <C> <C> <C>
Common Stock,
$.005 par value 1,809,955 $10 $18,099,550 $4,778
=============================================================================================
</TABLE>
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(1) Includes (i) 723,982 shares of common stock outstanding, (ii) up to
1,085,973 shares of common stock to be issued upon exercise of a stock
purchase warrant and (iii) an indeterminate number of additional shares of
common stock as may from time to time become issuable upon exercise of the
stock purchase warrant by reason of stock splits, stock dividends and
similar transactions, which shares are registered hereunder pursuant to
Rule 416 under the Securities Act.
(2) Estimated in accordance with Rule 457(c) for the purpose of computing the
amount of the registration fee based on the average of the high and low
prices of the Company's Common stock on the Nasdaq National Market System
on March 8, 2000.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT THAT SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
The information in this prospectus is not complete and may be changed. The
selling stockholder may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is effective. This
prospectus is not an offer to sell, and is not soliciting an offer to buy, these
securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED APRIL 19, 2000
PROSPECTUS
BIOSPHERICS INCORPORATED
1,809,955 SHARES OF COMMON STOCK
====================
The selling stockholder of Biospherics Incorporated ("Biospherics")
identified on page 6 hereof may offer and sell the shares covered by this
prospectus from time to time. The selling stockholder has acquired 723,982
shares of Biospherics' common stock and a stock purchase warrant to acquire
up to 1,085,973 additional shares at $6.90625 per share. Such purchases may
occur at any time during the four (4) year period ending February 23, 2004.
This prospectus may not be used by Biospherics for sales of its shares; it
may only be used by the selling stockholder for resales of Biospherics shares
owned by the selling stockholder as described herein. The selling stockholder
will receive all of the proceeds from the sale of the shares and will pay all
underwriting discounts and selling commissions, if any, applicable to the
sale of the shares. Biospherics will pay the expenses of registration of the
sale of the shares. The selling stockholder may also offer for sale
additional shares of common stock acquired upon exercise of the stock
purchase warrant as a result of stock splits, stock dividends or similar
events pursuant to Rule 416 under the Securities Act.
Our common stock trades on the Nasdaq National Market System under the
symbol "BINC". On March 8, 2000, the last reported sale price of our common
stock on the Nasdaq National Market System was $10.00 per share.
Our principal offices are located at 12051 Indian Creek Court, Beltsville,
Maryland 20705. Our telephone number is (301) 419-3900.
BEGINNING ON PAGE 2, WE HAVE LISTED SEVERAL "RISK FACTORS" WHICH YOU SHOULD
CONSIDER. YOU SHOULD READ THE ENTIRE PROSPECTUS CAREFULLY BEFORE YOU MAKE YOUR
INVESTMENT DECISION.
Neither the Securities and Exchange Commission nor any securities
commission has approved or disapproved of these securities, or determined if
this prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is , 2000.
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RISK FACTORS
YOU SHOULD CONSIDER CAREFULLY THE FOLLOWING RISK FACTORS, ALONG WITH THE
OTHER INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS, IN
DECIDING WHETHER TO INVEST IN OUR SHARES. THESE FACTORS, AMONG OTHERS, MAY CAUSE
ACTUAL RESULTS, EVENTS OR PERFORMANCE TO DIFFER MATERIALLY FROM THOSE EXPRESSED
IN ANY FORWARD-LOOKING STATEMENTS MADE IN THIS PROSPECTUS.
WE CONTINUE TO BE DEPENDENT ON OUR INFORMATION SERVICES DIVISION FOR NEARLY
ALL OF OUR REVENUE. Since the products developed by our Biotech division have
not yet been brought to market, we are almost entirely dependent on the
Information Services Division. This business is typically comprised of
relatively large contracts which are not usually for terms longer than one or
two years, subject to options to extend for one or more years. Some of this
business is awarded by competitive bidding. In many cases, the apparent low
bidder is subject to a protest action by the unsuccessful bidders that delays
the award of the contract and sometimes results in a rebidding. There can be no
assurance that we will continue to win and successfully defend these awards.
OUR INFORMATION SERVICES BUSINESS IS CURRENTLY DEPENDENT UPON LOWER-MARGIN
GOVERNMENT CONTRACTS. While our Information Services business is comprised of
both government and commercial business, the mix of such business changes from
period to period. Government business traditionally generates lower operating
margins than commercial business. In 1999, the government to commercial business
mix was more than 2 to 1.
D-TAGATOSE HAS NOT COME TO MARKET. We have granted an exclusive worldwide
license to MD Foods Ingredients amba of Denmark for the manufacture, marketing
and distribution of D-Tagatose as a food ingredient. Our receipt of future
payments from MD Foods is dependent upon MD Foods' efforts to bring this product
to market. In lieu of FDA qualification, MD Foods has assembled an expert panel
to review the safety of D-Tagatose. To our knowledge, MD Foods has yet to
commence construction of a plant to manufacture D-Tagatose. We have been advised
that construction will not begin until D-Tagatose has been certified by the
expert panel as a generally regarded safe product. Accordingly, the sale of
D-Tagatose as a food product is largely outside of our control.
UNCERTAIN EFFECT OF PROPOSED MERGER OF MD FOODS. MD Foods has announced
that it will merge with a company headquartered in Sweden during 2000. In
addition, there has been some speculation in the European press as to whether MD
Foods is seeking a partner to collaborate with it to produce D-Tagatose. It is
uncertain as to what effect, if any, these matters may have on future sales of
D-Tagatose.
DELAYS IN BRINGING D-TAGATOSE TO MARKET SHORTENS THE PERIOD WE ARE ENTITLED
TO ROYALTIES. Our agreement with MD Foods requires MD Foods to pay royalties on
sales of D-Tagatose during a defined period of time which corresponds to the
period that the rights to D-Tagatose are protected by U.S. and foreign patents.
The delay in bringing D-
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Tagatose to market results in a continuing shortening of
the time that we are entitled to royalty payments under the MD Foods agreement.
OTHER BIOTECH PRODUCTS ARE STILL IN THE DEVELOPMENT STAGE. While we are in
the process of attempting to develop other potential uses of D-Tagatose as well
as to develop other Biotech products, none have been developed to a stage where
any significant revenue has been generated. Development of products will require
significant additional research and development. Such additional effort will
require substantial funding which may not be available to us. There can be no
assurance that our research and development activities will result in any
saleable products. Further, it is possible that we will license or seek an
affiliation with a third party to bring some products to market. In such an
event, we would likely have minimal control over the manufacture and marketing
of such products.
OUR ABILITY TO MARKET ANY BIOTECH PRODUCTS WE DEVELOP WILL LIKELY DEPEND ON
OBTAINING FDA AND FOREIGN REGULATORY APPROVALS. Research, testing, manufacture,
labeling, distribution, marketing and advertising of new products are subject to
extensive regulation by governmental regulatory authorities in the United States
and other countries. These rigorous regulatory approval processes can take five
to ten years or more and require the expenditure of substantial resources. There
can be no assurance that we will be able to obtain the necessary approvals for
clinical testing or for the marketing of products.
OUR SUCCESS WILL DEPEND, IN PART, ON OUR ABILITY TO OBTAIN AND MAINTAIN
PATENT PROTECTION FOR OUR PRODUCTS. We have several patents for D-Tagatose and
other products under development. No assurance can be given that any additional
patents will be issued, that the protection of any patents that may be issued in
the future will be significant, or that current or future patents will be held
valid if subsequently challenged.
WE HAVE SUSTAINED LOSSES IN THE PAST AND WE MAY SUSTAIN LOSSES IN THE
FUTURE. We have incurred losses in prior years, including the last two (2)
years. Our net loss for the year ended December 31, 1999 was $5.2 million. No
assurance can be given that we will be profitable in the future.
WE MAY NOT BE ABLE TO OBTAIN ADDITIONAL FINANCING THAT WE WILL NEED. During
1999, our working capital decreased by $0.2 million as a result of the loss
incurred in 1999. We believe that we may need to raise more money to continue to
finance our product development operations. We may also need to raise additional
money to fund operations if the sales of D-Tagatose as a food product continue
to be delayed or are not as successful as we anticipate. We may not be able to
obtain additional financing on acceptable terms, or at all.
WE FACE INTENSE COMPETITION AND RAPID TECHNOLOGICAL ADVANCES BY
COMPETITORS. Our competitors in the Information Services business are numerous.
Many of our competitors have significantly greater financial, marketing and
distribution resources than we do. Our competitors may succeed in developing or
marketing technologies and products that are more effective than ours. In
addition, alternative sweetener(s) may enter the relevant markets prior to
D-Tagatose.
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<PAGE>
THE PRICE OF BIOSPHERICS' COMMON STOCK HAS BEEN HIGHLY VOLATILE DUE TO
SEVERAL FACTORS WHICH WILL CONTINUE TO EFFECT THE PRICE OF OUR STOCK. Our
common stock has traded as low as $4.00 and as high as $15.00 between
January 1, 1999 and February 29, 2000. Some of the factors leading to this
volatility include:
- price and volume fluctuations in the stock market at large which do
not relate to our operating performance;
- relatively small amounts of our stock trading on any given day;
- fluctuations in our operating results;
- announcements of technological innovations or new products which we or
our competitors make;
- developments with respect to patents or proprietary rights; and
- the status of MD Foods' efforts to obtain approval to begin to sell
D-Tagatose in the United States.
BIOSPHERICS AND THE PRICE OF BIOSPHERICS SHARES MAY BE ADVERSELY AFFECTED
BY THE PUBLIC SALE OF A SIGNIFICANT NUMBER OF THE SHARES ELIGIBLE FOR FUTURE
SALE. All outstanding shares of our common stock are freely tradable. A
significant number of additional shares may be issued upon exercise of warrants,
including the stock purchase warrant. Sales of large amounts of common stock in
the public market could materially adversely affect the market price. Such sales
also may inhibit our ability to obtain future equity-related financing on
acceptable terms.
WE MAY BE REMOVED FROM THE NASDAQ NATIONAL MARKET SYSTEM IF WE FAIL TO
MAINTAIN CERTAIN MAINTENANCE CRITERIA. Nasdaq inquired on one occasion whether
we continue to meet the net tangible assets criterion for trading on the Nasdaq
National Market System. We currently meet all requirements but our ability to
continue to do so will depend on our future operations. The public trading
volume of our common stock and the ability of our stockholders to sell their
shares could be significantly impaired if we fail to meet the criteria and are
removed from the Nasdaq National Market System.
DIVIDENDS ON OUR COMMON STOCK NOT LIKELY. We do not anticipate paying
dividends on our common stock. We presently intend to retain future earnings, if
any, in order to provide funds for use in the operation and expansion of our
business and for further research and development; accordingly, we do not
anticipate paying cash dividends on our common stock in the foreseeable future.
OUR CHARTER DOCUMENTS MAY INHIBIT A TAKEOVER. Certain provisions of our
Amended and Restated Certificate of Incorporation, Bylaws and stock options
could:
- discourage potential acquisition proposals;
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- delay or prevent a change in control of Biospherics;
- diminish stockholders' opportunities to participate in tender offers
for our common stock, including tender offers at prices above the then
current market price; or
- inhibit increases in the market price of our common stock that could
result from takeover attempts.
WE MAY NOT BE ABLE TO RETAIN OUR KEY EXECUTIVES AND RESEARCH AND
DEVELOPMENT PERSONNEL. As a small company, our success depends on the services
of key employees in executive and research and development positions. The loss
of the services of one or more of such employees could have a material adverse
effect on us.
YEAR 2000 COMPLIANCE RELATED PROBLEMS. Many computer systems will
experience problems handling dates beyond the year 1999. Potential problems may
be embedded and may not be experienced until well beyond January 1, 2000 by
computer systems. Therefore, some computer hardware and software may need to be
modified in order to remain functional. To date, we have processed our year 2000
requirements. The majority of the costs associated with implementing the Year
2000 compliance have already been recognized and have not been material in terms
of our financial operating results. We believe there is little risk associated
with year 2000 issues. There can be no assurance, however, that there will not
be a delay in, or increased costs associated with the implementation of such
changes. Our inability to implement such changes could have an adverse effect on
our future results of operations.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly, and current reports, proxy statements, and other
documents with the Securities and Exchange Commission. You may read and copy any
document we file at the SEC's public reference room at Judiciary Plaza Building,
450 Fifth Street, NW, Room 1024, Washington, D.C. 20549 or at its regional
public reference rooms in New York, New York or Chicago, Illinois. You should
call 1-800-SEC-0330 for more information on the public reference room. The SEC
maintains an internet site at http://www.sec.gov where certain information
regarding issuers (including Biospherics) may be found. You may also inspect and
copy our SEC filings at the offices of The Nasdaq Stock Market located at 1735 K
Street, N.W., Washington, DC 20006-1500.
This prospectus is part of a registration statement that we filed with the
SEC (Registration No. 333-32504). The registration statement contains more
information than this prospectus regarding Biospherics and its common stock,
including certain exhibits and schedules. You can get a copy of the registration
statement from the SEC at the address listed above or from its internet site.
The SEC allows us to "incorporate" into this prospectus information we file
with the SEC in other documents. This means that we can disclose important
information to you by referring to other documents that contain that
information. The information may include documents filed after
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<PAGE>
the date of this prospectus which update and supersede the information you read
in this prospectus. We incorporate by reference the documents listed below,
except to the extent information in those documents is different from the
information contained in this prospectus, and all future documents filed with
the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934 until we terminate the offering of these shares:
Our Annual Report on Form 10-KSB for the Year ended December 31, 1999
Our Current Report on Form 8-K filed on March 3, 2000.
Our Current Report on Form 8-K filed on April 12, 2000.
You may request a copy of these documents, at no cost, by writing or
telephoning us at:
Biospherics Incorporated
12051 Indian Creek Court
Beltsville, Maryland 20705
Attention: Richard C. Levin, Vice President
Telephone: (301) 419-3900
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
FORWARD-LOOKING INFORMATION
Some of the statements made in this prospectus or in the documents
incorporated by reference herein are not statements of historical fact but are
forward-looking statements. A number of risks and uncertainties, including those
discussed under the caption "Risk Factors" above and the documents incorporated
by reference herein could affect such forward- looking statements and could
cause actual results to differ materially from the statements made.
In some cases, you can identify forward-looking statements by terminology
such as "may", "will", "should", "plans", "anticipates", "believes",
"estimates", "predicts", "potential", or "continue" or the negative of such
terms or other comparable terminology.
Although we believe that the expectations reflected in the forward-looking
statements are reasonable, we cannot guarantee future results, events, levels of
activity, performance or achievements. We do not intend to update any of the
forward-looking statements after the date of this prospectus to conform them to
actual results.
SELLING STOCKHOLDER
The selling stockholder, RCG International Investors, LDC, acquired 723,982
shares of common stock and warrants to purchase an additional 1,085,973 shares
of common stock in a February 24, 2000 private placement.
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The following information is based upon information provided by the selling
stockholder. There are currently no agreements, arrangements or understandings
with respect to the sale of any of the shares. The shares are being registered
to permit public secondary trading of the shares, and the selling stockholder
may offer the shares for resale from time to time.
The following table sets forth the name of the selling stockholder, the
number of shares of common stock owned beneficially as of February 29, 2000 and
the number of shares which may be offered pursuant to this prospectus. Because
the selling stockholder may offer all, some or none of its common stock, no
definitive estimate as to the number of shares thereof that will be held by the
selling stockholder after such offering can be provided.
<TABLE>
<CAPTION>
Percentage of
Shares Beneficially Owned Maximum Outstanding Shares
Name of at February 29, 2000 Number of Shares Shares Beneficially Beneficially Owned
Selling Stockholder (1) (2) (4) Being Offered (3) Owned After Offering (4) After Offering (4)
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
RCG International
Investors, LDC 2,657,755 1,809,955 847,800 7.28%
</TABLE>
(1) Except as otherwise noted, the information contained in the table above
reflects "beneficial" ownership of the common stock within the meaning of
Rule 13d-3 under the Exchange Act. On February 29, 2000, Biospherics had
10,562,459 shares of common stock outstanding.
(2) The 2,657,755 shares consists of 996,782 shares directly owned; 575,000
shares which may be acquired by exercise of warrants issued to the selling
stockholder in 1999; and 1,085,973 shares which may be acquired by exercise
of the stock purchase warrant issued in the private placement.
(3) The number of shares set forth in the table represents an estimate of the
number of shares of common stock to be offered by the selling stockholder.
The actual number of shares of common stock issuable upon exercise of the
stock purchase warrant is subject to adjustment and could be materially
less or more than such estimated number depending on factors which cannot
be predicted by Biospherics at this time. The actual number of shares of
common stock offered hereby, and included in the Registration Statement of
which this prospectus is a part, includes such additional number of shares
of common stock as may be issued or issuable upon exercise of the stock
purchase warrant by reason of any stock split, stock dividend or similar
transaction involving the common stock in accordance with Rule 416 under
the Securities Act.
(4) Pursuant to the terms of the stock purchase warrant and the 1999 warrants,
such warrants are exercisable only to the extent that the number of shares
of common stock thereby issuable, together with the number of shares of
common stock owned by such holder and its affiliates (but not including
shares of common stock underlying any unexercised portion of the stock
purchase warrant or any other warrant) would not exceed 9.9% of the then
outstanding common stock as determined in accordance with Section 13(a) of
the Exchange Act. Accordingly, the number of shares of common stock set
forth in the table for the selling stockholder exceeds the number of shares
of common stock that the selling stockholder could own beneficially at any
given time through its ownership of the stock
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purchase warrant and the 1999 warrants. In that regard, beneficial
ownership of the selling stockholder set forth in the table is not
determined in accordance with Rule 13d-3 under the Exchange Act. The
selling stockholder has further agreed to not knowingly sell to any one
purchaser more than 4.9% of the outstanding common stock.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 18,000,000 shares of common stock,
$.005 par value, and 2,000,000 shares of preferred stock, $.01 par value. As of
the close of business on February 29, 2000, there were 10,562,459 shares of
common stock outstanding and no shares of preferred stock outstanding.
The holders of common stock are entitled to receive dividends when and as
declared by the Board of Directors out of funds legally available therefor. In
the event of the dissolution of Biospherics, the holders of common stock are
entitled to share ratably in the assets legally available for distribution to
its shareholders after the payment of the liquidation preference of any
outstanding preferred stock. The holders of the common stock have no preemptive,
subscription, conversion or redemption rights, and are not subject to further
calls or assessments. The common stock currently outstanding is, and the common
stock issued in this offering will be, validly issued, fully paid and
nonassessable.
Except as otherwise provided in our charter or required by law, the holders
of shares of common stock are entitled to one vote per share on all matters to
be voted on by shareholders and do not have the right of cumulative voting in
connection with elections for directors, which means the holders of more than
half the outstanding shares of common stock can elect all of the directors.
We are also authorized to issue 2,000,000 shares of preferred stock. Our
Board of Directors is authorized to issue the preferred stock in one or more
series and, with respect to each series, to determine the preferences and rights
and the qualifications, limitations, or restrictions thereof, including the
dividend rights, conversion rights, voting rights, redemption rights and terms,
liquidation preferences, sinking fund provisions, the number of shares
constituting each series and the designation of such series. The Board of
Directors could, without shareholder approval, issue preferred stock with voting
and other rights that could adversely affect the voting rights of the holders of
the common stock.
One of the effects of the preferred stock may be to enable the Board of
Directors to render more difficult or to discourage an attempt to obtain control
of Biospherics by means of a merger, tender offer, proxy contest or otherwise,
and thereby to protect the continuity of the management.
PLAN OF DISTRIBUTION
The selling stockholder, or its pledgees, donees, transferees or other
successors in interest, may offer its shares at various times in one or more of
the following transactions (which may involve block transactions):
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- on the Nasdaq National Market System (or any other exchange on which
the shares may be listed);
- in the over-the-counter market;
- in negotiated transactions other than on such exchanges;
- by pledge to secure debts and other obligations;
- in connection with the writing of non-traded and exchange-traded call
options, in hedge transactions, in covering previously established
short positions (so long as such short positions were established
after the effectiveness of the Registration Statement of which this
prospectus is a part) and in settlement of other transactions in
standardized or over-the-counter options; or
- in a combination of any of the above transactions.
The shares may also be sold pursuant to Rule 144. The selling stockholder,
or its pledgees, donees, transferees or other successors in interest, may sell
its shares at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices, at fixed prices or at such
other prices as the selling stockholder determines from time to time. The
selling stockholder may use broker-dealers to sell its shares. The
broker-dealers will either receive discounts or commissions from the selling
stockholder, or they will receive commissions from purchasers of shares.
Under certain circumstances the selling stockholder and any broker-dealers
that participate in the distribution may be deemed to be "underwriters" within
the meaning of the Securities Act. Any commissions received by such
broker-dealers and any profits realized on the resale of shares by them may be
considered underwriting discounts and commissions under the Securities Act. The
selling stockholder may agree to indemnify such broker-dealers against certain
liabilities, including liabilities under the Securities Act. In addition,
Biospherics has agreed to indemnify the selling stockholder with respect to the
shares offered hereby against certain liabilities, including certain liabilities
under the Securities Act. Alternatively, Biospherics may contribute toward
amounts paid due to such liabilities.
The selling stockholder will be subject to applicable provisions of the
Exchange Act and regulations under the Exchange Act which may limit the timing
of purchases and sales of shares of Biospherics' common stock by the selling
stockholder.
The selling stockholder will pay all commissions, transfer taxes, and other
expenses associated with the sale of securities by it. The shares offered hereby
are being registered pursuant to contractual obligations of Biospherics, and
Biospherics has paid the expenses of the preparation of this prospectus. We have
not made any underwriting arrangements with respect to the sale of shares
offered hereby.
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USE OF PROCEEDS
We will not receive any of the proceeds from the sale of the shares by the
selling stockholder, but we will receive the exercise price in the event the
stock purchase warrant held by the selling stockholder is exercised.
LEGAL MATTERS
Baxter, Baker, Sidle & Conn, P.A. of Baltimore, Maryland, our counsel in
connection with the offering, has issued an opinion about the validity of the
securities being offered.
EXPERTS
The financial statements incorporated in this Prospectus by reference to
the Annual Report on Form 10-KSB for the year ended December 31, 1999, have been
so incorporated in reliance on the report of PricewaterhouseCoopers LLP,
independent accountants, given on the authority of said firm as experts in
accounting and auditing.
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C>
Risk Factors........................................................... 2
Where You Can Find More Information.................................... 5
Forward Looking Information............................................ 6
Selling Stockholder.................................................... 6
Description of Capital Stock........................................... 8
Plan of Distribution................................................... 8
Use of Proceeds........................................................ 10
Legal Matters.......................................................... 10
Experts................................................................ 10
</TABLE>
1,809,955 SHARES
BIOSPHERICS INCORPORATED
COMMON STOCK
-----------------
PROSPECTUS
-----------------
_____, 2000
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses in connection with the
sale and distribution of the securities being registered. All of the amounts
shown are estimates except the Securities and Exchange Commission registration
fee and the NASDAQ National Market listing fee.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee........ $ 4,778
Legal fees and expenses.................................... $ 5,000
Accounting fees and expenses .............................. $ 5,000
NASDAQ National Market listing fee......................... $17,500
Miscellaneous.............................................. $ 1,000
Total...................................................... $33,278
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law permits a corporation
to include in its charter documents, and in agreements between the corporation
and its directors and officers, provisions expanding the scope of
indemnification beyond that specifically provided by the current law.
Article VI of the Registrant's Bylaws provides for the indemnification of
officers and directors of Biospherics to the fullest extent permitted by
Delaware law.
Article TENTH of Biospherics' Certificate of Incorporation provides that a
director shall not be personally liable to Biospherics or its stockholders for
monetary damages for breach of fiduciary duty except to the extent that
elimination or limitation of liability is not permitted under Delaware law.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
EXHIBIT DESCRIPTION
<TABLE>
<S> <C>
4.1 Securities Purchase Agreement dated as of February 24, 2000
(Incorporated by reference to the Company's Form 8-K filed on
March 3, 2000)
4.2 Stock Purchase Warrant dated as of February 24, 2000
(Incorporated by reference to the Company's Form 8-K filed on
II-1
<PAGE>
March 3, 2000)
4.3. Registration Rights Agreement dated as of
February 24, 2000 (Incorporated by reference
to the Company's Form 8-K filed on March 3,
2000)
5.1 Opinion of Baxter, Baker, Sidle & Conn, P.A.
23.1 Consent of Baxter, Baker, Sidle & Conn, P.A. (filed as part of
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
</TABLE>
ITEM 17. 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;
(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 A(1)(i) and A(1)(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 by the registrant pursuant to
Section 13 or 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.
II-2
<PAGE>
(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.
B. The undersigned registrant hereby undertakes that, for purposes of
determining liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act that is
incorporated by reference in the registration statement shall be deemed 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, 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 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 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-3 and has duly caused this Registration
Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Beltsville, State of Maryland, on April 19,
2000.
BIOSPHERICS INCORPORATED
By: /s/GILBERT V. LEVIN
----------------------
Gilbert V. Levin
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ GILBERT V. LEVIN President, Chief Executive Officer, April 19, 2000
- --------------------------- Treasurer and Director
Gilbert V. Levin (Principal Executive Officer)
II-3
<PAGE>
/s/ M. KAREN LEVIN Director, Vice President for April 19, 2000
- --------------------------- Communications, Secretary
M. Karen Levin
Director April 19, 2000
- ---------------------------
David A. Blake
/s/ LIONEL V. BALDWIN Director April 19, 2000
- ---------------------------
Lionel V. Baldwin
/s/ GEORGE S. JENKINS Director April 19, 2000
- ---------------------------
George S. Jenkins
/s/ ANNE S. MACLEOD Director April 19, 2000
- ---------------------------
Anne S. MacLeod
/s/ THOMAS GANTT Director April 19, 2000
- ---------------------------
Thomas Gantt
/s/ ROBERT CLAYTON Controller April 19, 2000
- ---------------------------
Robert Clayton
</TABLE>
BIOSPHERICS INCORPORATED
<TABLE>
<CAPTION>
INDEX TO EXHIBITS
EXHIBIT NO. DESCRIPTION
<S> <C>
5.1 Opinion of Baxter, Baker, Sidle & Conn, P.A.
23.1 Consent of Baxter, Baker, Sidle & Conn, P.A. (filed as part of
Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP, Independent Accountants
</TABLE>
II-4
<PAGE>
April 19, 2000
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549-0404
Mail Stop 4-5
Re: Biospherics Incorporated Form S-3
Registration Statement (the "Registration Statement")--
File No. 333-32504
-------------------------------------------------------
Ladies and Gentlemen:
Please find enclosed for filing an Amendment No. 1 to the Registration
Statement (the "Amendment"). The only provisions of the Amendment which have
been changed from the originally filed Registration Statement are noted on
the marked copy of the Amendment which has been included in the courtesy
copies of this submission which are being hand delivered.
This letter will also respond to the comment letter dated April 11, 2000
(the "Comment Letter"). The numbered paragraphs below shall correspond to the
numbered paragraphs contained in the Comment Letter.
1. With respect to your request for supplemental information pursuant
to Rule 418(a)(4) of the Securities Act, please be advised that there is only
one selling stockholder, RCG International Investors, LDC ("RCG"), an entity
which is not affiliated with Biospherics Incorporated. To our knowledge, RCG
acts as an independent entity and there is no "group" of entities that RCG is
acting on behalf of or otherwise representing. Accordingly, we believe there
is no information to provide to you pursuant to Rule 418(a)(4).
2. The opinion has been modified as requested.
3. The disclosure on the cover page of the Prospectus has been modified
as requested.
If you have any further questions or comments, please do not hesitate to
contact the undersigned.
Very truly yours,
Richard C. Levin,
Vice President
cc: James E. Baker, Jr., Esquire
<PAGE>
Biospherics Incorporated
March 10, 2000
Page No. 2
Baxter, Baker, Sidle & Conn, P.A.
Attorneys at Law
120 E. Baltimore Street, Suite 2100
Baltimore, Maryland 21202-1643
James E. Baker, Jr. Telephone (410) 230-3800
Direct Line (410) 385-8122 Facsimile (410) 230-3801
e-mail: [email protected]
EXHIBIT 5.1
April 19, 2000
Biospherics Incorporated
12051 Indian Creek Court
Beltsville, MD 20705
Ladies and Gentlemen:
We have acted as counsel to Biospherics Incorporated, a Delaware
corporation (the "Company"), in connection with the registration under the
Securities Act of 1933, of 1,809,955 shares of Common Stock of the Company,
$.005 par value per share, pursuant to a Registration Statement on Form S-3 to
be filed with the Securities and Exchange Commission (the "Registration
Statement").
In rendering the opinions contained herein, we have examined originals or
photostatic or certified copies of all certificates, documents, agreements and
other instruments as we have deemed appropriate.
Based upon the foregoing, we are of the opinion that each of the 1,809,955
shares of the Common Stock of the Company covered by the Registration Statement,
when issued by the Company in accordance with the Stock Purchase Warrant dated
as of February 24, 2000, and for not less than the par value thereof, will be
duly authorized, validly issued, fully paid and nonassessable.
1
<PAGE>
Biospherics Incorporated
April 19, 2000
Page No. 2
We consent to the reference to our firm under the caption "Legal Matter"
in the Prospectus which is a part of the Registration Statement and to the
inclusion of this opinion as an exhibit to the Registration Statement.
Very truly yours,
Baxter, Baker, Sidle & Conn, P.A.
By: /s/JAMES E. BAKER, JR.
---------------------------
James E. Baker, Jr., Vice President
2
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in this Registration Statement
on Form S-3 of our report dated February 29, 2000, relating to the financial
statements, which appears in Biospherics Incorporated Annual Report on Form
10-KSB for the year ended December 31, 1999. We also consent to the reference to
us under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Baltimore, Maryland
April 19, 2000
