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As filed with the Securities and Exchange Commission on August 7, 1998
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
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LIFECORE BIOMEDICAL, INC.
(Exact name of registrant as specified in its charter)
Minnesota 41-0948334
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
3515 Lyman Boulevard
Chaska, Minnesota 55318
(612) 368-4300
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
James W. Bracke Copy to: Amy E. Ayotte
Lifecore Biomedical, Inc. Dorsey & Whitney LLP
3515 Lyman Boulevard 220 South Sixth Street
Chaska, Minnesota 55318 Minneapolis, MN 55402
(612) 368-4300 (612) 340-6323
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Approximate date of commencement of proposed sale to the public: From
time to time 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, 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, 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, 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
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Proposed Proposed
Title of Each Amount Maximum Maximum Amount of
Class of Securities to be Offering Price Aggregate Registration
to be Registered Registered(1) Per Share* Offering Price* Fee
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Common Stock
($.01 par value) 28,413 $11.00 $312,543 $92.20
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* Estimated solely for purposes of computing the registration fee and based
upon the average of the high and low sales prices for such Common Stock on
August 4, 1998, as reported on the Nasdaq National Market.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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PROSPECTUS
LIFECORE BIOMEDICAL, INC.
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28,413 SHARES OF
COMMON STOCK
($.01 PAR VALUE)
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This Prospectus relates to an aggregate of 28,413 shares (the
"Shares") of Common Stock, par value $.01 per share (the "Common Stock"), of
Lifecore Biomedical, Inc., a Minnesota corporation ("Lifecore" or the
"Company"), that may be sold from time to time by the shareholder named
herein (the "Selling Shareholder"). See "Selling Shareholder." The Company
will not receive any proceeds from the sale of the Shares. The Company has
agreed to pay the expenses of registration of the Shares, including legal and
accounting fees.
The Shares offered hereby were acquired by the Selling Shareholder in a
private transaction in July 1998. The Shares are "restricted securities"
under the Securities Act of 1933, as amended (the "Securities Act"), prior to
their sale hereunder. This Prospectus has been prepared for the purpose of
registering the Shares under the Securities Act to allow for future sales by
the Selling Shareholder to the public without restriction. The Selling
Shareholder may be deemed to be an "underwriter" within the meaning of the
Securities Act. Any commissions received by a broker or dealer in connection
with resales of the Shares may be deemed to be underwriting commissions or
discounts under the Securities Act. See "Plan of Distribution."
Any or all of the Shares may be offered from time to time in
transactions on the Nasdaq National Market in brokerage transactions at
prevailing market prices or in transactions at negotiated prices. See "Plan
of Distribution."
The Shares offered hereby have not been registered under the blue sky or
securities laws of any jurisdiction, and any broker or dealer should assure
the existence of an exemption from registration or effectuate such
registration in connection with the offer and sale of the Shares.
The Common Stock is traded on the Nasdaq National Market under the
trading symbol "LCBM". On August 4, 1998, the last sale price of the Common
Stock as reported on the Nasdaq National Market was $11.00 per share.
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THE ACQUISITION AND OWNERSHIP OF THE COMMON STOCK INVOLVE A HIGH DEGREE
OF RISK. THE COMMON STOCK SHOULD BE PURCHASED ONLY BY INVESTORS WHO
ARE ABLE TO AFFORD THE RISK OF LOSS OF THEIR ENTIRE INVESTMENT.
(SEE "RISK FACTORS")
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus in connection
with the offer contained herein, and, if given or made, such information or
representations must not be relied upon as having been authorized by the
Company. This Prospectus does not constitute an offer to sell, or a
solicitation of an offer to buy, any securities offered hereby in any
jurisdiction in which it is not lawful or to any person to whom it is not
lawful to make any such offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall, under any circumstances, create
any implication that information herein is correct as of any time subsequent
to the date hereof.
The date of this Prospectus is August , 1998.
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TABLE OF CONTENTS
Page
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Available Information . . . . . . . . . . . . . . . . . . . . . . . . 4
Incorporation of Certain Documents by Reference. . . . . . . . . . . . 4
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Selling Shareholder. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . 13
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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AVAILABLE INFORMATION
The Company is subject to the informational requirements 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"). This
Prospectus does not contain all the information set forth in the Registration
Statement and exhibits thereto which the Company has filed with the
Commission under the Securities Act, and to which reference is hereby made.
Reports, proxy statements and other information filed by the Company can be
inspected and copied at the public reference facilities of the Commission at
450 Fifth Street, N.W., Washington, D.C. 20549. Copies of such materials can
be obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. A copy of the
Registration Statement is also available on the Commission's EDGAR site on
the World Wide Web at: http:\\www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents of the Company, which have been filed with the
Commission, are hereby incorporated by reference in this Prospectus:
(a) the Annual Report on Form 10-K for the year ended June 30,
1997;
(b) the Quarterly Reports on Form 10-Q for the quarters ended
September 30, 1997, December 31, 1997 and March 31, 1998; and
(c) the description of the Common Stock contained in the Registration
Statement on Form S-2 dated August 30, 1995, and any amendment or report
filed for the purpose of updating such description filed subsequent to the
date of this Prospectus and prior to the termination of the offering
described herein.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the respective dates of filing of such documents. Any statement contained
herein or in a document all or part of which is incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any subsequently filed document which also is or 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 Prospectus.
The Company will provide without charge to any person to whom this
Prospectus is delivered, upon the written or oral request of such person, a copy
of any or all of the foregoing documents incorporated herein by reference (other
than certain exhibits to such documents). Requests for such copies should be
directed to Chief Financial Officer, Lifecore Biomedical, Inc., 3515 Lyman
Boulevard, Chaska, Minnesota 55318, telephone number (612) 368-4300.
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RISK FACTORS
PROSPECTIVE INVESTORS IN THE SHARES OFFERED HEREBY SHOULD CAREFULLY
CONSIDER THE FOLLOWING RISK FACTORS, IN ADDITION TO THE OTHER INFORMATION
APPEARING IN OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS.
LACK OF PROFITABILITY; POSSIBLE NEED FOR FUTURE FINANCING
The Company has experienced losses since 1990 and incurred a loss of
$1,033,000 in fiscal 1997. For the period from fiscal 1990 through the first
half of fiscal 1994, the losses were attributable to the significant costs
incurred in validating and operating the Company's facilities, research and
development, and marketing. The losses in the second half of fiscal 1994 and
the full fiscal 1995 and 1996 resulted principally from direct charges
associated with excess plant capacity, research and development costs for
INTERGEL-Registered Trademark Adhesion Prevention Solution ("INTERGEL
Solution"), and sales and marketing expenses related to the expanded product
offerings of the Company's Oral Restorative Division. The Company incurred a
loss of approximately $281,000 for the nine months ended March 31, 1998. As
the Hyaluronate Division increases production to meet current and future
requirements, the Company's direct charges associated with excess plant
capacity will decrease; however, research and development costs for INTERGEL
Solution, sales and marketing expenses for the oral restorative products, and
personnel costs are increasing.
The Company's ability to generate positive cash flow from operations and
achieve profitability is dependent upon the continued expansion of revenue
from its hyaluronate and oral restorative businesses. The Company expects
its future cash requirements to be covered by cash generated from anticipated
operations. No assurance can be given that the Company will attain and
maintain positive cash flow before its capital resources are exhausted. The
Company has received waivers through fiscal 1999 with respect to certain
covenants in the industrial development revenue bonds used to finance its
facility. There can be no assurance that waivers will continue to be granted
to the Company after fiscal 1999 and thus, such bonds may be required to be
redeemed before maturity. If additional financing is necessary, no assurance
can be given that such financing will be available and, if available, will be
on terms favorable to the Company and its shareholders.
UNCERTAINTY OF SUCCESSFUL DEVELOPMENT OF NEW HYALURONATE PRODUCTS
A significant amount of the Company's anticipated growth is dependent on
its ability to develop, manufacture and market new product applications for
hyaluronate. Such formulations must be developed, tested and, in most cases,
approved for use by appropriate government agencies. Once approved as
products, they must be manufactured in commercial quantities and marketed
successfully. Each of these steps involves significant amounts of time and
expense. There can be no assurance that any of these products, if and when
fully developed and tested, will perform in accordance with the Company's
expectations, that necessary regulatory approvals will be obtained in a
timely manner, if at all, or that these products can be successfully and
profitably produced and marketed.
The Company has made a significant investment in the development of a
hyaluronate product to reduce the incidence of postsurgical adhesions.
Clinical testing of the first generation of this product indicated a need for
further development. Additional work led to an Investigational Device
Exemption ("IDE") application which was approved in April 1995 by the United
States Food and Drug Administration (the "FDA"). A pilot human clinical
trial on a second generation product, INTERGEL Solution, was completed at a
single United States clinical center in December 1995. Based on the results
of the pilot study, the Company initiated a pivotal human clinical trial in
March 1996. The Company's ability to make commercial sales of INTERGEL
Solution in the United States is dependent
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upon its receipt of Pre-Market Approval ("PMA") from the FDA. There can be no
assurance that the Company's pivotal clinical trial will confirm the
statistical significance observed in the pilot trial, or that the PMA will be
approved by the FDA within the Company's timetable, or at all. Furthermore,
even if INTERGEL Solution is successfully developed and the Company receives
a PMA, there can be no assurance that it will receive market acceptance.
Failure to achieve significant sales of INTERGEL Solution would have a
material adverse effect on future prospects for the Company's operations.
RELIANCE ON MARKETING AND DEVELOPMENT SUPPORT FROM CORPORATE PARTNERS
The Company has historically developed, manufactured, and marketed its
Hyaluronate Division products through long-term strategic alliances with
corporate partners. In the case of such relationships, the speed and other
aspects of the development project are sometimes outside of the Company's
control, as the other party to the relationship often has priorities that
differ from those of the Company. Thus, the timing of commercialization of
the Company's products under development may be subject to unanticipated
delays.
Further, the Company currently has limited direct sales capabilities in
the Hyaluronate Division and generally relies upon its corporate partners for
marketing and distribution to end-users. The market success of the Company's
hyaluronate products generally will depend upon the size and skill of the
marketing organizations of the Company's corporate partners, as well as the
level of priority assigned to the marketing of the Company's products by
these entities, which may differ from the Company's. Should one or more of
the Company's strategic alliances fail to develop or market products as
planned, the Company's business may be adversely affected. No assurance can
be given that the Company will be able to negotiate acceptable strategic
alliances in the future or that current strategic alliances will continue
beyond the terms of existing agreements.
The development contracts into which the Company enters with corporate
partners are long-term agreements that are subject to development milestones,
product specifications, and other terms. Consequently, future agreement
often is required regarding the course and nature of continued development
activities. Contractual issues requiring resolution between the parties have
arisen in the past and are expected to arise in the ordinary course of the
Company's future development activities. There can be no assurance that all
such issues will be successfully resolved.
LIMITED DIRECT SALES AND MARKETING RESOURCES
The Oral Restorative Division markets its products through a direct
sales force and a distribution network. Continued growth of the Company's
revenues from oral restorative products will depend on the ability of this
sales and distribution network to increase the Company's market share by
convincing practitioners to use the Company's products over competing
established products. No assurance can be given that the sales and
distribution network will be successful in increasing or maintaining the
Company's market share or sales levels. Failure to increase the market share
of these products would adversely affect the Company's results of operations
and financial condition.
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COMPETITION
Lifecore is engaged in very competitive segments of the human health
care products industry. Competitors of the Hyaluronate and Oral Restorative
Divisions in the United States and elsewhere are numerous and include major
chemical, dental, medical, and pharmaceutical companies, as well as smaller
specialized firms. Many of these competitors have substantially greater
capital resources, marketing experience, and research and development
resources than the Company. These companies may succeed in developing
products that are more effective than any that have been or may be developed
by Lifecore and may also prove to be more successful than Lifecore in
producing and marketing these products. In addition, the Oral Restorative
Division is competing against a number of large established competitors. In
order to increase sales, the Division must gain market share from its
competitors. There can be no assurance that Lifecore will be able to
continue to compete successfully against these competitors.
The Company's primary development project involves INTERGEL Solution for
its potential application in reducing the incidence of postsurgical
adhesions. Several companies are pursuing anti-adhesion product development,
including Alliance Pharmaceuticals, Inc., Anika Therapeutics, Inc.,
Biomatrix, Inc., Focal, Inc., Genzyme Corporation ("Genzyme"), Gliatech,
Inc., Life Medical Sciences, Inc., Osteotech and W.L. Gore & Associates, Inc.
Genzyme also sells an ophthalmic hyaluronate component to Alcon
Laboratories, Inc. ("Alcon"), the Company's largest customer.
In addition, negative announcements regarding any competitor's products
may have a negative impact on the public's perception of the market potential
for all similar products, including the Company's products.
There can be no assurance that product introductions by present or
future competitors or future technological or health care innovations will
not render Lifecore's products and processes obsolete.
PROTECTION OF PROPRIETARY TECHNOLOGY
Lifecore's success depends, to a large extent, on its ability to
maintain a competitive technological position in its product areas. While
certain of Lifecore's patents have been allowed or issued, there can be no
assurance that, to the extent issued, the Company's patents will effectively
protect its proprietary technology. If other manufacturers were to infringe
on its patents, there can be no assurance that the Company would be
successful in challenging, or would have adequate resources to challenge,
such infringement. Lifecore also relies upon trade secrets, proprietary
know-how and continuing technological innovation to develop and maintain its
competitive position. There can be no assurance that others will not
independently develop such know-how or otherwise obtain access to the
Company's technology. While Lifecore's employees, temporary staff,
consultants and corporate partners with access to proprietary information are
required to enter into confidentiality agreements, there can be no assurance
that these agreements will provide the Company with adequate protection from
loss of proprietary technology or know-how.
Under current law, patent applications in the United States are
maintained in secrecy until patents are issued, and patent applications in
foreign countries are maintained in secrecy for a period after filing. The
right to a device patent in the United States is attributable to the first to
invent the device, not the first to file a patent application. Accordingly,
the Company cannot be sure that its products or technologies do not infringe
patents that may be granted in the future pursuant to pending patent
applications. The Company has not received any notices alleging, and is not
aware of, any infringement by the Company of any other entity's patents
relating to the Company's current or anticipated products. There can be no
assurance, however, that its products do not infringe any patents
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or proprietary rights of third parties. In the event that any relevant
claims of third-party patents are upheld as valid and enforceable, the
Company could be prevented from selling its products or could be required to
obtain licenses from the owners of such patents or be required to redesign
its products or processes to avoid infringement. There can be no assurance
that such licenses would be available or, if available, would be on terms
acceptable to the Company or that the Company would be successful in any
attempt to redesign its products or processes to avoid infringement. The
Company's failure to obtain these licenses or to redesign its products or
processes would have a material adverse effect on the Company's business,
financial condition, and results of operations.
LACK OF REGULATORY APPROVALS; REGULATION OF EXISTING PRODUCTS
The Company's products under development are considered to be medical
devices and, therefore, they require clearance or approval by the FDA before
commercial sales can be made in the United States. The products also require
approvals of foreign government agencies before sales may be made in many
other countries. The process of obtaining these clearances or approvals
varies according to the nature and use of the product. It can involve
lengthy and detailed laboratory and clinical testing, sampling activities and
other costly and time-consuming procedures. There can be no assurance that
any of the required clearances or approvals will be granted on a timely
basis, if at all.
In addition, most of the existing products being sold by the Company and
its customers are subject to continued regulation by the FDA, various state
agencies and foreign regulatory agencies which regulate manufacturing,
labeling and record keeping procedures for such products. Marketing
clearances or approvals by these agencies can be withdrawn due to failure to
comply with regulatory standards or the occurrence of unforeseen problems
following initial clearance or approval. These agencies can also limit or
prevent the manufacture or distribution of the Company's products. A
determination that the Company is in violation of such regulations could lead
to the imposition of civil penalties, including fines, product recalls or
product seizures, injunctions, and, in extreme cases, criminal sanctions.
POSSIBLE LIMITATIONS ON ABILITY TO MANUFACTURE PRODUCTS
The Company has designed its modular facility to permit the production
of hyaluronate at levels exceeding current levels of production. However, in
the event of a sudden increase in demand for any of the Company's hyaluronate
products, the Company will be required to scale-up operations, including the
acquisition and validation of additional equipment and training of additional
personnel. No assurance can be given that the Company will be able to
adequately meet any such demands on a timely basis.
RISK OF INTERRUPTION OF MANUFACTURING
The Company's manufacturing requires extensive specialized equipment.
In addition, the Company manufactures its hyaluronate products at one
facility. Although the Company has contingency plans in effect for certain
natural disasters, as well as other unforeseen events which could damage the
Company's facilities or equipment, no assurance can be given that any such
events will not materially interrupt the Company's business. In the event of
such an occurrence, the Company has business interruption insurance to cover
lost revenues and profits. However, such insurance would not compensate the
Company for the loss of opportunity and potential adverse impact on relations
with existing customers created by an inability to produce its products.
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DEPENDENCE ON MANAGEMENT
The Company's success depends in large part upon the services of its
executive officers. The executive officers consist of Dr. James W. Bracke,
President and Chief Executive Officer; Dennis J. Allingham, Executive Vice
President and Chief Financial Officer; Brian J. Kane, Vice President of
Marketing and New Business Development; and Colleen M. Olson, Vice President
of Corporate Administrative Operations. The loss of any one of these
individuals may have a material adverse effect on the Company's business and
operations. Dr. Bracke has an employment agreement with the Company which
extends through November 2000. Although the Company is the owner and
beneficiary of a life insurance policy covering Dr. Bracke, there can be no
assurance that the proceeds of such policy will be sufficient to compensate
the Company for the loss of his services. The Company does not have
employment agreements or life insurance on the other officers.
EXPOSURE TO PRODUCT LIABILITY CLAIMS
The manufacture and sale of the Company's products entails a risk of
product liability claims. In addition to product liability exposure for its
own products, the Company may be subject to claims for products of its
customers which incorporate Lifecore's materials. The Company maintains
product liability insurance coverage of $1.0 million per claim with an
aggregate maximum of $2.0 million for all of its products. The Company also
carries a $10.0 million umbrella insurance policy which also covers product
liability claims. Lifecore Biomedical SpA also carries product liability
insurance in the amount of $1.0 million per claim with an aggregate maximum
of $2.0 million. However, there can be no assurance that the Company will
have sufficient resources if claims exceed available insurance coverage.
While the Company has not experienced any product liability claims to date, a
product liability claim, or other claim with respect to uninsured liabilities
or in excess of insured liabilities, could have a material adverse effect on
the business, financial condition and results of operations of the Company.
In addition, there can be no assurance that insurance will continue to be
available to the Company and that, if available, the insurance will continue
to be on commercially acceptable terms.
POSSIBLE VOLATILITY OF SHARE PRICE
Market prices in the United States for securities of medical technology
companies can be highly volatile, and the trading price of the Company's
Common Stock could be subject to significant fluctuations in response to
quarterly variations in operating results, announcements of the status or
results of development projects or technological innovations by the Company
or its competitors, government regulation and other events or factors. The
volatility in market prices may be unrelated to the operating performance of
particular companies. These market fluctuations have in the past materially
adversely affected the market price of the Company's Common Stock, and may
have such an effect in the future.
ANTI-TAKEOVER CONSIDERATIONS
The Board of Directors of the Company has the authority, without any
action by the shareholders, to fix the rights and preferences of any shares
of the Company's Preferred Stock to be issued from time to time. Pursuant to
the Company's Articles of Incorporation, the Board of Directors is divided
into three classes of directors, with each director serving a three-year
term. Each year only one class of directors is subject to a shareholder
vote, and approximately one-third of the directors belongs to each class. A
shareholder desiring to control the Board of Directors must participate in
two elections of directors to obtain majority representation on the Board of
Directors. In addition, as a Minnesota corporation, the Company is subject
to certain anti-takeover provisions of the Minnesota
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Business Corporation Act. All of these factors could have the effect of
delaying, deferring or preventing a change in control of the Company, may
discourage bids for the Company's Common Stock at a premium over the then
prevailing market price of the Common Stock, and may adversely affect the
market price of, and the voting and other rights of the holders of, Common
Stock.
NO DIVIDENDS
The Company has never paid or declared a dividend on its capital stock
and does not anticipate doing so for the foreseeable future.
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THE COMPANY
Lifecore Biomedical, Inc. develops, manufactures and markets medical and
surgical devices through its two divisions, the Hyaluronate Division and the
Oral Restorative Division. Further information about Lifecore can be obtained
from Lifecore's internet site at www.lifecore.com.
The Company's Hyaluronate Division is principally involved in the
development and manufacture of products utilizing hyaluronate, a
naturally-occurring carbohydrate which moisturizes or lubricates the soft
tissues of the body. The Hyaluronate Division's primary development project
involves INTERGEL Solution, the Company's second generation product for
potential application in reducing the incidence of postsurgical adhesions.
INTERGEL Solution is intended to reduce the incidence of fibrous tissue
adhesions, which commonly form as part of the body's natural healing process
when tissues or organs are subject to accidental or surgical trauma.
Particularly with respect to abdominal, cardiovascular, orthopedic,
reproductive, and thoracic surgeries, these adhesions may cause internal
complications that often require costly postsurgical intervention. Industry
sources recently estimated the annual cost of treating adhesion complications
in the lower abdomen, a common site for the occurrence of adhesions, at $2
billion in the United States.
The Company produces hyaluronate through a proprietary fermentation
process. Currently, the primary commercial use for the Company's hyaluronate
is as a component in ophthalmic surgical solutions for cataract surgery.
Lifecore is pursuing the development of several other applications of
hyaluronate through its strategic alliances with a number of corporate
partners for a variety of veterinary, drug delivery and wound care
applications. The Company also is leveraging its specialized hyaluronate
manufacturing skills to develop and manufacture non-hyaluronate products for
medical applications.
The Company's Oral Restorative Division markets a comprehensive line of
titanium-based dental implants for the replacement of lost or extracted
teeth. In May 1992, the Company acquired the Sustain Dental Implant System
from Bio-Interfaces, Inc. and, in July 1993, acquired Implant Support
Systems, Inc. ("ISS"), the manufacturer of the Restore Dental Implant System
and the ISS line of compatible components. The Company has enhanced and
expanded these product lines since their acquisition. The Division also
manufactures and markets tissue regeneration products for the restoration of
bone deterioration resulting from periodontal disease and tooth loss. In May
1997, Lifecore acquired the TefGen-Registered Trademark-product line from
Bridger Biomed, Inc. The acquisition expanded and complemented the growing
line of tissue regenerative products by adding a nonresorbable membrane to
address the current clinical practice referred to as guided tissue
regeneration. In June 1997, Lifecore further expanded its tissue regeneration
business to include soft tissue applications with the addition of
AlloDerm-Registered Trademark-Dermal Graft, which the Company distributes on
an exclusive basis to the U.S. dental market for LifeCell Corporation
("LifeCell"). This Division's products are marketed in the United States
through the Company's direct sales force; in Italy through the Company's
subsidiary, Lifecore Biomedical SpA; and in other countries through
distributors.
Lifecore Biomedical, Inc. was incorporated in Minnesota in 1965. As
used herein, "Lifecore" or the "Company" refers to Lifecore Biomedical, Inc.
and its wholly-owned subsidiaries. The Company's executive offices are
located at 3515 Lyman Boulevard, Chaska, Minnesota 55318 and its telephone
number is (612) 368-4300. For further information concerning Lifecore, see
the documents incorporated by reference herein as described under
"Incorporation of Certain Documents by Reference."
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<PAGE>
SELLING SHAREHOLDER
The Selling Shareholder is Bridger Biomed, Inc., a Montana
corporation, with its principal offices at 2430 N. 7th Street, Suite 4,
Bozeman, Montana 59715 (the "Selling Shareholder"). On May 12, 1997, in
connection with the acquisition of the TefGen-Registered Trademark-product
line of the Selling Shareholder, the Company issued a Promissory Note in
favor of the Selling Shareholder for an aggregate amount of $1,600,000 (the
"Note"), pursuant to which the Company has the option to pay the principal
and accrued interest thereunder in the form of common stock, $.01 par value,
of the Company. The Company paid the first installment on the Note on July
10, 1998 in the form of 28,413 shares of unregistered common stock to the
Selling Shareholder. The number of shares issued to the Selling Shareholder
was determined using a formula based on the quoted market value of the Common
Stock as determined on the Nasdaq National Market.
The following table sets forth certain information, as of August 1,
1998, as to the maximum number of Shares that may be sold by the Selling
Shareholder pursuant to this Prospectus.
<TABLE>
<CAPTION>
Number Maximum Number
of Shares Number of Shares
Beneficially of Shares to be Beneficially
Owned Prior Sold Pursuant to Owned After
Name to Offering this Prospectus Offering (1)
- ------------------------ ------------- ----------------- ------------------
<S> <C> <C> <C>
Bridger Biomed, Inc. 28,413 28,413 0
- --------------
</TABLE>
(1) Assumes the sale of all Shares covered by this Prospectus.
-12-
<PAGE>
PLAN OF DISTRIBUTION
The Shares will be offered and sold by the Selling Shareholder for its
own account. Lifecore will not receive any proceeds from the sale of the
Shares pursuant to this Prospectus. Lifecore has agreed to pay the expenses
of registration of the Shares, including legal and accounting fees.
The Shares offered hereby may be sold by the Selling Shareholder, from
time to time in transactions on the Nasdaq National Market, in brokerage
transactions at prevailing market prices or in transactions at negotiated
prices. Sales may be made to or through brokers or dealers who may receive
compensation in the form of discounts, concessions or commissions from the
Selling Shareholder or the purchasers of Shares for whom such brokers or
dealers may act as agent or to whom they may sell as principal, or both. As
of the date of this Prospectus, Lifecore is not aware of any agreement,
arrangement or understanding between any broker or dealer and the Selling
Shareholder.
The Selling Shareholders and any broker-dealer or agents that
participate with the Selling Shareholders in the distribution of the Shares
may be deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act, and any commissions received by them and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act.
EXPERTS
The audited financial statements and schedule of the Company as of June
30, 1997 and 1996 and for each of the three years in the period ended June
30, 1997 incorporated herein and in the registration statement by reference
to the Company's Annual Report on Form 10-K have been audited by Grant
Thornton LLP, independent certified public accountants, to the extent set
forth in their report included therein and incorporated herein by reference.
Such financial statements are incorporated herein by reference in reliance
upon such report given upon the authority of such firm as experts in
accounting and auditing.
LEGAL MATTERS
The validity of the Shares offered hereby has been passed upon for the
Company by Dorsey & Whitney LLP, 220 South Sixth Street, Minneapolis, Minnesota
55402.
-13-
<PAGE>
PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
SEC Registration Fee. . . . . . . . . . . . . $92.20
Accounting Fees and Expenses. . . . . . . . . $1,000
Legal Fees and Expenses . . . . . . . . . . . $5,000
Total. . . . . . . . . . . . . . . . . . $6,092.20
</TABLE>
All fees and expenses other than the SEC registration fee are estimated.
The expenses listed above will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Bylaws provide that the Company may indemnify each
director or officer, whether or not then in office (and such person's heirs,
executors, and administrators), against reasonable costs and expenses
incurred in connection with any action, suit or proceeding to which such
person may be made a party by reason of such person's being or having been a
director or officer, except in relation to any actions, suits, or proceedings
in which such person has been adjudged liable because of willful malfeasance,
bad faith, gross negligence or reckless disregard of the duties involved in
the conduct of such person's office. The bylaws further provide that such
rights and indemnification shall not be exclusive of any other rights to
which the officers and directors may be entitled according to law.
Section 302A.521 of the Minnesota Business Corporation Act provides that
a corporation shall indemnify any person who was or is made or is threatened
to be made a party to any proceeding, by reason of the former or present
official capacity (as defined) of such person, against judgments, penalties,
fines, settlements and reasonable expenses, including attorneys' fees and
disbursements, incurred by such person in connection with the proceeding if
certain statutory standards are met. "Proceeding" means a threatened,
pending or complete civil, criminal, administrative, arbitration or
investigative proceeding, including one by or in the right of the
corporation. Section 302A.521 contains detailed terms regarding such right
of indemnification and reference is made thereto for a complete statement of
such indemnification rights.
In addition, the Company has entered into indemnification agreements
with each of its directors and officers, which agreements provide for
indemnification to the full extent permitted by Minnesota law.
The Company maintains a standard policy of officers' and directors'
insurance.
ITEM 16. LIST OF EXHIBITS
<TABLE>
<C> <S>
5 Opinion of Dorsey & Whitney LLP
23.1 Consent of Grant Thornton LLP
23.2 Consent of Dorsey & Whitney LLP (included in Exhibit 5 to this
Registration Statement)
24 Power of Attorney
</TABLE>
<PAGE>
ITEM 17. UNDERTAKINGS
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 the registration statement (or most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change in the information set forth in the registration statement;
Provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and 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 section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for purposes 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 therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to section 13(a) or 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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 liabilities (other than
II-2
<PAGE>
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.
II-3
<PAGE>
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 to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on
August 7, 1998.
LIFECORE BIOMEDICAL, INC.
By /s/ James W. Bracke
----------------------------------
James W. Bracke
President and Chief Executive Officer
and Secretary
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities indicated on August 7, 1998.
<TABLE>
<CAPTION>
Signature Title
<S> <C>
/s/ James W. Bracke President, Chief Executive Officer,
- ------------------------------- Secretary and Director
James W. Bracke (principal executive officer)
/s/ Dennis J. Allingham Executive Vice President and
- ------------------------------- Chief Financial Officer
Dennis J. Allingham (principal financial officer)
* Director
- -------------------------------
Orwin L. Carter, Ph.D.
Director
- -------------------------------
Joan L. Gardner
* Director
- -------------------------------
Thomas H. Garrett
* Director
- -------------------------------
John C. Heinmiller
* Director
- -------------------------------
Donald W. Larson
* Director
- -------------------------------
Richard W. Perkins
* By /s/ James W. Bracke
------------------------------
James W. Bracke
</TABLE>
<PAGE>
Exhibit 5
August 7, 1998
Lifecore Biomedical, Inc.
3515 Lyman Boulevard
Chaska, MN 55318
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Lifecore Biomedical, Inc., a Minnesota
corporation (the "Company"), in connection with a Registration Statement on
Form S-3 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended, relating to
the sale of up to 28,413 shares of common stock of the Company, par value
$.01 per share ("Common Stock"), of which all such shares will be sold from
time to time by the Selling Shareholder named in the Registration Statement,
on the Nasdaq National Market or otherwise, directly or through underwriters,
brokers or dealers.
We have examined such documents and have reviewed such questions of law
as we have considered necessary and appropriate for the purposes of our
opinions set forth below. In rendering our opinions set forth below, we have
assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures and the conformity to authentic originals of
all documents submitted to us as copies. We have also assumed the legal
capacity for all purposes relevant hereto of all natural persons and, with
respect to all parties to agreements or instruments relevant hereto other
than the Company, that such parties had the requisite power and authority
(corporate or otherwise) to execute, deliver and perform such agreements or
instruments, that such agreements or instruments have been duly authorized by
all requisite action (corporate or otherwise), executed and delivered by such
parties and that such agreements or instruments are the valid, binding and
enforceable obligations of such parties. As to questions of fact material to
our opinions, we have relied upon certificates of officers of the Company and
of public officials.
Based on the foregoing, we are of the opinion that the shares of Common
Stock to be sold by the Selling Shareholder pursuant to the Registration
Statement have been duly authorized by all requisite corporate action and are
validly issued, fully paid and nonassessable.
Our opinions expressed above are limited to the laws of the State of
Minnesota.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the heading
"Legal Matters" in the Prospectus constituting part of the Registration
Statement.
Very truly yours,
/s/ Dorsey & Whitney
AEA
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS
We have issued our report dated August 1, 1997 accompanying the
consolidated financial statements and schedule of Lifecore Biomedical, Inc.
and Subsidiaries included in the annual Form 10-K for the fiscal year ended
June 30, 1997 which is incorporated by reference in this Registration
Statement and Prospectus. We consent to the incorporation by reference in
the Registration Statement and Prospectus of the aforementioned report and
to the use of our name as it appears under the caption "Experts."
/s/ GRANT THORNTON LLP
Minneapolis, Minnesota
August 5, 1998
<PAGE>
Exhibit 24
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints each of James W. Bracke and
Dennis J. Allingham his or her true and lawful attorney-in-fact and agent,
with full power of substitution and resubstitution, for him or her and in his
or her name, place and stead, in any and all capacities to execute a
Registration Statement on Form S-3 to be filed under the Securities Act of
1933, as amended, for the registration of the resale of certain shares of
Common Stock of Lifecore Biomedical, Inc., and any and all amendments
(including post-effective amendments) thereto, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent, or his or her substitute, may lawfully
do or cause to be done by virtue hereof.
<TABLE>
<S> <C>
Dated: August 6, 1998 /s/ Orwin L. Carter
-------------------------------
Orwin L. Carter, Ph.D.
Dated: August ___, 1998
-------------------------------
Joan L. Gardner
Dated: August 6, 1998 /s/ Thomas H. Garret
-------------------------------
Thomas H. Garret
Dated: August 6, 1998 /s/ John C. Heinmiller
-------------------------------
John C. Heinmiller
Dated: August 6, 1998 /s/ Donald W. Larson
-------------------------------
Donald W. Larson
Dated: August 5, 1998 /s/ Richard W. Perkins
-------------------------------
Richard W. Perkins
</TABLE>
