<PAGE>
Registration No. 33-63987
As filed with the Securities and Exchange Commission on November 14, 1995.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________________________
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BI INCORPORATED
---------------
(Exact name of registrant as specified in its charter)
Colorado 3699 84-0769926
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(State or other juris- (Primary Standard Industrial (I.R.S. Employer
diction of incorporation Classification Code Number) Identification No.)
or organization)
6400 Lookout Road
Boulder, Colorado 80301
(303) 530-2911
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(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
David J. Hunter, President
BI Incorporated
6400 Lookout Road
Boulder, Colorado 80301
(303) 530-2911
--------------
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
John G. Lewis, Esq.
Ireland, Stapleton, Pryor & Pascoe, P.C.
1675 Broadway, 26th Floor
Denver, Colorado 80202
Telephone: (303) 623-2700
________________________________________
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
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]
________________________________________
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, as amended, or until the Registration Statement shall
become effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
CALCULATION OF REGISTRATION FEE
Previously calculated and paid.
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PROSPECTUS
71,500 Shares
BI INCORPORATED
COMMON STOCK
________________________________________
All of the shares of Common Stock offered by this Prospectus are being
sold by the Selling Shareholders named under "Selling Shareholders." The
Company will not receive any proceeds from the sale of the shares offered by
this Prospectus. All expenses relating to the distribution of the Common Stock
are to be paid by the Company, other than selling commissions and fees and
expenses of counsel and other representatives of the Selling Shareholders. An
affiliate of one of the Selling Shareholders is a member of the Board of
Directors of the Company.
SEE "CERTAIN CONSIDERATIONS" FOR A DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE
CONSIDERED BY PROSPECTIVE INVESTORS.
The Common Stock is quoted on the Nasdaq National Market under the
symbol "BIAC." On November ___, 1995, the last sale price of the Common Stock as
reported by Nasdaq was $___ per share.
________________________________________
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.
The date of this Prospectus is November ____, 1995.
<PAGE>
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"). The reports, proxy
statements and other information filed by the Company with the Commission may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and
should be available at the Commission's Regional Offices located at 7 World
Trade Center, 13th Floor, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material
may be obtained at prescribed rates by addressing written requests for such
copies to the Public Reference Section of the Commission at its Washington, D.C.
facility.
The Company has filed with the Commission a registration statement on
Form S-3 (such registration statement, together with all amendments and
exhibits, the "Registration Statement") under the Securities Act of 1933, as
amended (the "Act"). This Prospectus does not contain all of the information
set forth in the Registration Statement. The Registration Statement may be
inspected and copied at the public reference facilities maintained by the
Commission at the address set forth in the preceding paragraph.
No person is authorized to give any information or to make any
representations other than as contained in this Prospectus in connection with
this offering and, if given or made, such information or representations must
not be relied upon as having been authorized by the Company. Neither the
delivery of this Prospectus nor any sale made hereunder shall under any
circumstances create any implication that the information herein is correct as
of any time subsequent to the date hereof. This Prospectus does not constitute
an offer to sell or the solicitation of an offer to buy by anyone in any state
in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to any person to
whom it is unlawful to make such offer or solicitation.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents which have been filed with the Commission
pursuant to the Exchange Act are hereby incorporated by reference in this
Prospectus:
(1) the Company's Annual Report on Form 10-K for the fiscal year
ended June 30, 1995, and the Company's Quarterly Report on Form 10-Q for the
quarter ended September 30, 1995;
(2) all other documents filed by the Company pursuant to Section 13(a)
or 15(d) of the Exchange Act after June 30, 1995, and prior to the date of this
Prospectus; and
(3) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed under the Exchange Act.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of this offering shall be deemed to be incorporated by reference in
this Prospectus and to be a part hereof from the date of filing of such
documents (such documents, and the documents enumerated above, being hereinafter
referred to as the "Incorporated Documents"). Any statement contained in an
Incorporated Document shall be deemed to be modified or superseded for all
purposes to the extent that a statement contained in this Prospectus or in any
other subsequently filed Incorporated Document or in an accompanying prospectus
supplement modifies or supersedes such statement.
The Company will provide without charge to each person to whom this
Prospectus is delivered, on the written or oral request of such person, a copy
(without exhibits) of any or all documents incorporated by reference in this
Prospectus. Written requests for such copies should be directed to the
Secretary, BI Incorporated, 6400 Lookout Road, Boulder, Colorado 80301.
Telephone requests may be directed to (303) 530-2911.
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CERTAIN CONSIDERATIONS
Before purchasing the shares offered by this Prospectus a prospective
investor should consider, among other things, the following factors:
Competition. The markets for the Company's products are highly
competitive, and the Company expects competition to increase. Certain of the
Company's current and prospective competitors may have significantly greater
financial, technical, manufacturing and marketing resources and name recognition
than the Company. The Company believes that its ability to compete depends on
the success and timing of new product development by the Company and its
competitors, product performance and price, distribution, and customer service
and support. There can be no assurance that the Company will be able to compete
successfully with respect to these factors.
Technical Developments. The markets in which the Company competes are
subject to technological change. The Company's success will depend to a large
extent on its ability to continue to design or acquire, introduce, manufacture
and market innovative new products and services on a cost-effective and timely
basis. There can be no assurance that the Company will be able to achieve the
technological advances that may be necessary to remain competitive or that the
resulting products will meet with commercial acceptance.
Quarterly Fluctuations. The Company's customer base is currently
dominated by federal, state and local jurisdictions. Many of these
jurisdictions have a fiscal year which ends on June 30. The purchasing
activities of these customers are dependent on the completion of their
respective annual budgeting cycles. While a seasonal pattern has not been
clearly established, the Company believes this annual budgeting process could
influence its quarterly revenue and earnings pattern.
Acquisition Strategy. An important element in the Company's past and
future business strategy and continued growth is the Company's ability to
acquire new product lines or related businesses. There can be no assurance when
or whether the Company will make any acquisitions. Any further acquisition by
the Company may involve the use of cash, debt or equity securities or a
combination thereof.
General and Professional Liability. The Company has a general
liability insurance policy that provides coverage for liability claims arising
out of the products it sells, and has professional liability insurance which
provides coverage for claims arising out of the monitoring services it provides.
The Company has not been the subject of any material product or professional
liability claims; however, there can be no assurance that the Company's
liability insurance policies will cover any such claims, or that such policies
can be maintained at an acceptable cost. Any liability of the Company which is
not covered by such policies, or is in excess of the limits of liability of such
policies, could have a material adverse effect on the financial condition of the
Company.
Patents. The Company has numerous United States and foreign patents
issued as well a number of United States and foreign patents pending. There can
be no assurance, that the protection afforded by these patents will provide the
Company with a competitive advantage, or that the Company will be able to assert
its intellectual property rights in infringement actions. In addition, there
can be no assurance that the Company's current product or products under
development will not infringe any patent or other intellectual property rights.
Reliance on Key Personnel. The Company's operations are dependent on
the continued efforts of senior management. Should certain of these people be
unable to continue in their present roles, the Company's prospects could be
adversely affected.
Government Regulations. Since the Company's products emit radio
energy, they are subject to government regulations as to power levels and
frequency. Although the Company has received approvals from the Federal
Communications Commission and waivers or approvals from certain foreign
countries for its current products, it will be necessary to obtain waivers or
approvals for these products in other countries in order to export these
products and to obtain waivers or approvals in the United States and foreign
countries with respect to future products.
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There can be no assurance that the Company will be able to obtain additional
required approvals or waivers. Moreover, changes in government regulations or
withdrawal of government approvals or waivers could affect the saleability of
the Company's products.
Lack of Dividends. The Company has not paid dividends on the Common
Stock. The Company intends to retain any earnings for the development of its
business and therefore does not anticipate that any cash dividends will be paid
on the Common Stock in the foreseeable future.
THE COMPANY
BI Incorporated was incorporated in Colorado in 1978, and maintains
its executive offices at 6400 Lookout Road, Boulder, Colorado 80301. Its
telephone number is (303) 530-2911.
PURPOSE AND PROCEEDS OF THE OFFERING
The Company has registered the shares of Common Stock offered by this
Prospectus for the benefit of the Selling Shareholders. The Company will not
receive any proceeds from the sale of Common Stock offered by this Prospectus.
SELLING SHAREHOLDERS
This prospectus relates to the resale of 71,500 shares of the
Company's Common Stock by the Selling Shareholders named below. Of the 52,750
shares to be offered and sold by Colorado Venture Management ("CVM"), 49,000 are
shares to be issued to CVM upon the exercise of warrants outstanding as of the
date of this Prospectus and the remaining 3,750 shares were previously issued to
CVM upon the exercise of another warrant. William E. Coleman, a director of the
Company, is chairman of CVM.
The 15,000 shares to be offered and sold by Paul Rosenbaum were issued
upon the exercise of a warrant, and the 3,750 shares to be offered and sold by
Innovative Research Associates ("IRA") are shares to be issued to IRA upon the
exercise of a warrant outstanding as of the date of this Prospectus.
The shares of Common Stock offered by this Prospectus may be sold from
time to time by the Selling Shareholders, or by pledgees, donees, transferees or
other successors in interest. Such sales may be made on the Nasdaq National
Market or in the over-the-counter market, or otherwise at prices and at terms
then prevailing or at prices related to the then current market price, or in
negotiated transactions. The shares may be sold by one or more of the
following: (a) a block trade in which the broker or dealer so engaged will
attempt to sell the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction; (b) purchases by a broker or
dealer as principal and resale by such broker or dealer for its account pursuant
to this prospectus; and (c) ordinary brokerage transactions and transactions in
which the broker solicits purchasers. In effecting sales, brokers or dealers
engaged by the Selling Shareholders may arrange for other brokers or dealers to
participate. Brokers or dealers will receive commissions or discounts from the
Selling Shareholders in amounts to be negotiated immediately prior to the sale.
Such brokers or dealers and any other participating brokers or dealers may be
deemed to be "underwriters" within the meaning of the Act in connection with
such sales. In addition, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 may be sold under Rule 144 rather than
pursuant to this Prospectus.
Upon the Company being notified by any of the Selling Shareholders
that any material arrangement has been entered into with a broker-dealer for the
sale of shares through a block trade, special offering, or secondary
distribution or a purchase by a broker or dealer, a supplemental prospectus will
be filed, if required, pursuant to Rule 424(b) under the Act, disclosing (i) the
name of the participating broker-dealer(s), (ii) the number of shares involved,
(iii) the price at which such shares were sold, (iv) the commissions paid or
discounts or concessions allowed
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to such broker-dealer(s), where applicable, (v) that such broker-dealer(s) did
not conduct any investigation to verify the information set out or incorporated
by reference in this Prospectus and (vi) other facts material to the
transaction.
<TABLE>
<CAPTION>
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Number of Shares Number of Shares
Selling Shareholder Owned Prior to Number of Shares Owned After
Offering Offered Offering
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<S> <C> <C> <C>
Colorado Venture Management 52,750 49,000 3,750
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Paul Rosenbaum 20,000 15,000 5,000
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Innovative Research Associates 3,750 3,750 -0-
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</TABLE>
LEGAL MATTERS
Certain legal matters relating to this offering are being passed
upon for the Company by Ireland, Stapleton, Pryor & Pascoe, P.C., Denver,
Colorado.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the approximate amount of the fees
and expenses payable by the Company in connection with the issuance and
distribution of the Common Stock being registered hereby.
<TABLE>
<CAPTION>
<S> <C>
SEC Registration Fee............................................. $ 208.00
Legal Fees and Expenses.......................................... 1,500.00
Accounting Fees and Expenses..................................... 2,500.00
Printing/Miscellaneous........................................... 250.00
---------
Total.................................................... $4,458.00
=========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Bylaws provide that the Board of Directors has the
authority to indemnify any director or officer for expenses incurred in any
threatened, pending or completed action, suit or investigation consistent with
the laws of the State of Colorado.
Section 7-3-101.5 of the Colorado Corporation Code provides that a
corporation may indemnify directors, officers, employees, fiduciaries or
agents in connection with any action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in the best interest of the
corporation. However, no indemnification shall be made in respect of any
claim, issue or matter as to which such person has been adjudged to be liable
for negligence or misconduct in the performance of his duty to the corporation
unless the court determines that such person is entitled to indemnification.
ITEM 16. EXHIBITS.
*3.1 Articles of Incorporation, as amended, of the Company.
Incorporated herein by reference to the Company's registration
statement on Form S-18, SEC File No. 2-82311-D.
*3.2 Bylaws, as amended, of the Company. Incorporated herein by
reference to the Company's registration statement on Form S-18,
SEC File No. 2-82311-D.
*5.1 Opinion of Ireland, Stapleton, Pryor & Pascoe, P.C., regarding
the legality of the Common Stock being registered.
*10.1 Common Stock Purchase Warrant dated April 18, 1994 for the
benefit of Colorado Venture Management for 7,500 shares.
*10.2 Common Stock Purchase Warrant dated April 24, 1991 for the
benefit of Colorado Venture Management for 25,000 shares.
Incorporated herein by reference to the Company's Annual Report
on Form 10-K for the year ended June 30, 1991.
*10.3 Common Stock Purchase Warrant dated April 18, 1994 for the
benefit of Colorado Venture Management for 7,500 shares.
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<PAGE>
*10.4 Common Stock Purchase Warrant dated April 18, 1994 for the
benefit of Colorado Venture Management for 4,500 shares.
*10.5 Common Stock Purchase Warrant dated April 18, 1994 for the
benefit of Colorado Venture Management for 4,500 shares.
*10.6 Common Stock Purchase Warrant dated January 23, 1990 for the
benefit of Innovative Research Associates for 3,750 shares.
Incorporated herein by reference to the Company's Annual Report
on Form 10-K for the year ended June 30, 1994.
*23.1 Consent of Price Waterhouse LLP, independent accountants.
*23.2 Consent of Ireland, Stapleton, Pryor & Pascoe, P.C. (included
in the opinion filed as Exhibit 5.1).
____________________
* Previously filed.
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: 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.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered 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.
(4) 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.
(5) 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 described in
Item 15 above 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.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933 as
amended, 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 Boulder, State of
Colorado on November 14, 1995.
BI INCORPORATED
By /s/ David J. Hunter*
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David J. Hunter, President
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below constitutes and appoints David J. Hunter and Jackie A.
Chamberlin, or either of them, his or her attorney-in-fact, with full power of
substitution, for him or her in any and all capacities, to sign any amendments
to this Registration Statement, and to file the same, with exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact,
may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 as
amended, this Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
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<S> <C> <C>
/s/ David J. Hunter* President, Chief Executive November 14, 1995
- ------------------------------ Officer, Director
David J. Hunter
/s/ Jackie A. Chamberlin Vice President-Finance (Principal November 14, 1995
- ------------------------------ Financial and Accounting Officer)
Jackie A. Chamberlin
/s/ Jeremy N. Kendall* Chairman and Director November 14, 1995
- ------------------------------
Jeremy N. Kendall
/s/ William E. Coleman* Vice Chairman and Director November 14, 1995
- ------------------------------
William E. Coleman
/s/ Mckinley C. Edwards, Jr.* Director November 14, 1995
- ------------------------------
Mckinley C. Edwards, Jr.
/s/ Beverly J. Haddon* Director November 14, 1995
- ------------------------------
Beverly J. Haddon
</TABLE>
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<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Perry M. Johnson* Director November 14, 1995
- ------------------------------
Perry M. Johnson
/s/ George J. Pilmanis* Director November 14, 1995
- ------------------------------
George J. Pilmanis
/s/ Frank L. Randall, Jr.* Director November 14, 1995
- ------------------------------
Frank L. Randall, Jr.
/s/ Byam K. Stevens, Jr.* Director November 14, 1995
- ------------------------------
Byam K. Stevens, Jr.
</TABLE>
*by Jackie A. Chamberlin, attorney-in-fact.
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