As filed with the Securities and Exchange Commission on April 15, 1996
Registration Statement No. _______
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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APPLIED MICROBIOLOGY, INC.
(Exact name of registrant as specified in its charter)
New York 2083 11-2653613
(State or other jurisdiction (Primary Standard (I.R.S. Employer
of incorporation) Industrial Classification Identification No.)
Code Number)
Applied Microbiology, Inc. Fredric D. Price
771 Old Saw Mill River Road 771 Old Saw Mill River Road
Tarrytown, New York 10591 Tarrytown, New York 10591
(914) 347-5767 (914) 347-5767
(Address, including zip code, and (Name, address, including zip code, and
telephone number, including area telephone number, including area code, of
code, of registrant's principal agent for service)
executive offices)
---------------
Copies To:
Oscar D. Folger, Esq.
521 Fifth Avenue
New York, New York 10175
Approximate date of commencement of proposed sale to public:
From time to time after the effective date of this Registration Statement
depending on market conditions.
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/
CALCULATION OF REGISTRATION FEE
Title of Each
Class of
Securities Proposed Maximum Proposed Maximum Amount of
Being Amount Being Offering Price Aggregate Registration
Registered Registered per Share (1) Offering Price Fee
- ------------- ------------ ---------------- ---------------- ------------
Common Stock 375,408 $5.25 $1,970,892 $679.62
(1) Estimated for purposes of computing the registration fee pursuant to Rule
457(c) at $5.25 per Share based upon the average of the high and low prices of
$5.50 and $5.00 respectively, on April 11, 1996.
---------------
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.
---------------
PROSPECTUS
APPLIED MICROBIOLOGY, INC.
375,408 Shares of Common Stock
---------------
This Prospectus relates to an aggregate of 375,408 shares of Common Stock
of Applied Microbiology, Inc. (the "Company"), par value $.005 per share (the
"Common Stock"). This Prospectus does not relate to the sale or issuance by the
Company of any securities. Any securities will be offered for the respective
accounts of the Selling Security Holders, who either currently own Common Stock
or who will acquire Common Stock upon exercise of warrants which are owned by
them. See "Selling Security Holders." The Company will receive the exercise
prices payable upon such exercises. However, the Company will not receive any
proceeds from the sale of the shares of Common Stock by the Selling Security
Holders. The Company has been advised by the Selling Security Holders that
there are no underwriting arrangements with respect to the sale of the Common
Stock, that the Common Stock will be sold from time to time in the
over-the-counter market at then prevailing prices and in private transactions at
negotiated prices, and that usual and customary brokerage fees, if any, will be
paid by the Selling Security Holders in connection therewith.
The Company's Common Stock is traded on the Nasdaq National Market System
under the symbol AMBI. As reported by Nasdaq for April 11, 1996, the last sale
price for the Company's Common Stock was $5.3125.
---------------
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS."
---------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
================================================================================
Price to Underwriting Discounts Proceeds to Selling
Public (1) and Commissions Security Holders(1)
Per Share ...... -0-
================================================================================
(1) Not determinable at present time.
The date of this Prospectus is ___________________, 1996.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith files reports and other
information with the Securities and Exchange Commission (the "Commission").
Reports, registration statements, proxy statements and other information filed
by the Company with the Commission can be inspected and copied at the public
reference facilities maintained by the Commission at Room 1024, 450 Fifth
Street, N.W., Washington, D.C., and at the Commission's Regional Offices: Suite
1400, Northwestern Atrium Center, 500 West Madison Street, Chicago, Illinois; 7
World Trade Center, New York, New York, and Suite 500, 5757 Wilshire Boulevard,
Los Angeles, California, and with respect to registration statements, Suite 788,
1375 Peachtree Street, Atlanta, Georgia. Copies of such materials can be
obtained from the Public Reference Section of the Commission, 450 Fifth Street,
N.W., Washington, D.C. 20549, at prescribed rates.
The Company undertakes to provide without charge to each person to whom
this Prospectus is delivered, upon the written or oral request of such person, a
copy of any and all of the information that has been incorporated by reference
in the Prospectus (not including exhibits to the information that is
incorporated by reference unless such exhibits are specifically incorporated by
reference into the information that the Prospectus incorporates). Such request
should be directed to the Secretary, Applied Microbiology, Inc., 771 Old Saw
Mill River Road, Tarrytown, New York 10591.
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 OFFERING DESCRIBED HEREIN AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS DOES NOT CONSTITUTE AN OFFERING IN ANY JURISDICTION TO ANY PERSON TO
WHOM SUCH OFFER WOULD BE UNLAWFUL OR AN OFFERING OF ANY SECURITIES OTHER THAN
THE REGISTERED SECURITIES TO WHICH IT RELATES. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY OFFER OR SALE MADE HEREUNDER AT ANY TIME SHALL IMPLY THAT THE
INFORMATION PROVIDED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
THE COMPANY
Applied Microbiology, Inc., (the "Company") is a New York corporation which
was incorporated on June 29, 1983. The Company researches, develops,
manufactures, and sells food ingredients, and researches, develops and
manufactures special dietary foods and pharmaceuticals. The executive offices of
the Company are located at 771 Old Saw Mill River Road, Tarrytown, New York
10591 and its telephone number at that address is 914-347-5767.
RISK FACTORS
THE SECURITIES OFFERED HEREBY ARE HIGHLY SPECULATIVE IN NATURE AND INVOLVE A
HIGH DEGREE OF RISK. PROSPECTIVE INVESTORS SHOULD CONSIDER CAREFULLY THE
FOLLOWING FACTORS IN ANALYZING THIS OFFERING:
Government Regulation
Healthcare and cosmetics
Products which are intended for use in the diagnosis, cure, mitigation,
treatment or prevention of disease in humans or animals are subject to extensive
governmental regulation. All such products are subject to regulation for quality
assurance, toxicology and safety. Products containing such agents must undergo
thorough preclinical and clinical evaluations of performance as to safety and
efficacy under approved protocols.
The Company intends to pursue regulatory approval for the pharmaceutical
and related uses of its products. The Company's proposed pharmaceutical products
will be subject to the regulatory approval processes for new drugs. The Company
believes that its products for the treatment of bovine mastitis will be
considered animal drugs which are subject to approval by the Food and Drug
Administration ("FDA") Center for Veterinary Medicine in the U.S. and by other
developed countries' regulatory agencies. To take a product from the discovery
stage through research and preclinical development to the point where the
Company and/or its partners can make the necessary filing (to the FDA and
governmental agencies outside the U.S.) to conduct human clinical trials may
take several years. Regulatory requirements for human clinical trials are
substantial, depend upon a variety of factors, vary by country, and will further
add to the time necessary to determine whether a product candidate can be
approved for human use. There can be no assurance that the Company's proposed
products will prove to be safe and effective under these regulatory procedures.
Foods and food processing
Ingredients added to or used in food which are considered "food additives"
require FDA approval in the U.S. unless, based on the submission of safety and
functionality data, such ingredients are considered generally recognized as safe
("GRAS"). Use of GRAS food ingredients does not require FDA approval, but
companies frequently submit petitions to the FDA which request that the FDA
affirm GRAS status. The Company submitted a request to the FDA for such
affirmation for the Company's nisin preparation. The FDA has affirmed that nisin
or a nisin preparation which meets certain specifications is GRAS for use in
pasteurized cheese spreads and pasteurized cheese spreads with fruits,
vegetables, or meats (GRAS Affirmed uses). The use of Nisaplin or nisin in
cheese products and foods, other than for GRAS Affirmed uses, may occur based on
the manufacturer or user determining that such use is GRAS. Such uses may
necessitate a submission to FDA. Should such a submission to the FDA become
necessary, timely action by the FDA cannot be assured.
Drug Related Risks
Adverse side effects from the treatment of diseases and disorders in both
human and animal patients may occur during clinical testing of a new drug on
humans and animals. Such effects may delay FDA approval and even cause a company
to terminate its efforts to develop a drug for commercial use. In addition,
adverse side effects that develop after the FDA has approved a drug could result
in legal action against a company. Drug developers and manufacturers, including
the Company, may face substantial liability for damages in the event of adverse
side effects or product defects identified with their products used in clinical
tests or marketed to the public. There can be no assurance that the Company will
be able to defend itself successfully in any suit that may be brought against
it. Further, there can be no assurance that the Company will be able to satisfy
any claims for which it may held liable resulting from the use or misuse of
products which it has developed, manufactured or sold.
Dependence on Key Executive and Skilled Personnel
The business of the Company depends heavily upon the participation of Mr.
Fredric D. Price, President and Chief Executive Officer of the Company. Loss of
his services would adversely affect the operations of the Company. In addition,
both the long term and short term success of the Company depend in large part
upon its continued ability to attract and retain skilled scientific and
managerial employees. There can be no assurance that the Company will at all
times be able to attract such qualified individuals as a result of the highly
competitive nature of the market for such persons.
Competition
The Company believes that it produces the major part of the world's annual
output of nisin. Nevertheless, there are a number of companies with greater
financial resources than the Company who may be seeking to enter the industry.
Nisaplin competes in the marketplace with other processes and additives, which
to some extent are similar in function and in some circumstances are directly
competitive.
The Company is evaluating certain proprietary special dietary food products
in the areas of cardiovascular disease, diabetes, infectious disease, and
gastrointestinal disorders. Special Dietary Foods are foods that supply
particular dietary needs or that may aid in the dietary management of disease
and are sometimes known as medical foods, functional foods, or nutraceuticals.
The Company was granted an exclusive license by a division of Orion
Corporation ("Orion"), the largest pharmaceutical company in Finland, to make,
have made, use and sell in the United States Orion's patented salt alternative.
This product, currently being sold in Finland and Japan by Orion and its
licensee, has significantly less sodium than regular salt and contains potassium
and magnesium, essential minerals that may help in the dietary management of
blood pressure. The Company is marketing this product to physicians for
recommendation to their hypertensive patients and to those at risk of developing
hypertension.
The Company has not previously marketed products in this manner. Other
larger food and pharmaceutical companies (with substantially greater financial
resources and with relevant marketing experience) could acquire or develop
products that may compete with the Company's salt alternative and with other
special dietary food products that the Company may acquire in the future. There
can be no assurance that the Company's salt alternative will be successful or
that the Company will be able to develop or acquire other special dietary foods
that have a substantial marketplace potential.
The Company understands that there are numerous scientific laboratories
which seek to develop alternative bacteriocins and other antimicrobial peptides.
Success by competitors in work with other anti-bacterial or germicidal products
may substantially and adversely affect the Company's prospects. Many of the
large corporations that are involved in or are expected to enter the field of
biotechnology have substantially greater financial, marketing and human
resources than the Company and have the capability of providing significant
long-term competition.
Dividends Not Likely
The Company has never paid any dividends on its Common Stock. The payment
of future dividends will be dependent upon earnings, financial requirements of
the Company and other factors deemed relevant by the Company's Board of
Directors. For the foreseeable future it is anticipated that any earnings which
may be generated from operations of the Company will be used to finance the
growth of the Company and that cash dividends will not be paid to holders of
Common Stock.
Volatility of Stock Price
The market prices for securities issued by small health care companies have
been volatile. Announcements of technological innovations for new commercial
products by the Company's competitors, adverse developments concerning
regulatory review, proprietary rights and corporate plans, the introduction of
new products and changes in general conditions in the pharmaceutical industry
may have a significant impact on the Company's business and on the market price
of the Common Stock.
Technological Obsolescence
The fields in which the Company's products are being developed are
undergoing rapid technological advances. There is no assurance that the Company
will be in a position to take advantage of such advances. In addition, there can
be no assurance that some of the Company's products will not be rendered
obsolete as a result of the successful application of such technology by
competitors.
Product Liability Claims and Uninsured Risks
To the extent that the Company is successful in developing and marketing
new products, it will be exposed to liability resulting from the use of such
products. The Company has obtained product liability insurance for the products
it currently markets and intends to obtain product liability insurance for
products it will market in the future. Although the Company may apply for
product liability insurance, there is no assurance that it will receive
insurance or that such insurance will be sufficient to cover all possible
liabilities.
Foreign Currency Risk
The Company's principal subsidiary is located in the United Kingdom. Such
subsidiary operates its business, including the billing of customers outside the
U.S., in the Great Britain pound (GBP). In the United States, all transactions
are denominated in U.S. dollars. The financial reporting currency for the
Company is the U.S. dollar (USD). Therefore, investors are exposed to the risk
of possible currency fluctuations between the GBP and the USD.
SELLING SECURITY HOLDERS
The securities being offered hereby are for the accounts of the following
persons:
Securities to be
Securities Owned Securities Owned after
Name and Address Before Offering to be Sold Offering
- ---------------- ---------------- ---------- ----------------
Nippon Shoji Kaisha, Ltd. 630,816 (1) 315,408 315,408
Jeffrey H. Berg 11,000 (1) 10,000 1,000
Gelvin Stevenson 16,160 (1) 10,000 6,160
Michael J. Bruderman 5,000 (2) 5,000 -0-
Thomas H. Bruderman 35,000 (2) 35,000 -0-
- --------
(1) Includes shares of Common Stock issuable upon exercise of warrants.
(2) Consists of shares of Common Stock issuable upon exercise of warrants.
PLAN OF DISTRIBUTION
The securities are being offered for the respective accounts of the Selling
Security Holders. The Company will not receive any proceeds from the sale of any
securities by the Selling Security Holders, although it will receive proceeds
from the exercise of warrants by the Selling Security Holders.
The sale of securities by the Selling Security Holders may be effected from
time to time in transactions in the over-the-counter market, in negotiated
transactions, or through a combination of such methods of sale, at fixed prices,
which may be charged at market prices prevailing at the time of sale, at prices
related to such prevailing market prices or at negotiated prices. The Selling
Security Holders may effect such transactions by selling the securities to or
through broker-dealers, and such broker-dealers may receive compensation in the
form of discounts, concessions or commissions from the Selling Security Holders
and/or the purchasers of the securities for which such broker-dealers may act as
agent or to whom they sell as principal, or both (which compensation as to a
particular broker-dealer may be in excess of customary compensation).
The Selling Security Holders and any broker-dealers who act in connection
with the sale of the securities hereunder may be deemed to be "underwriters"
within the meaning of Section 2(11) of the Securities Act, and any commissions
received by them and profit on any sale of the securities as principal might be
deemed to be underwriting discounts and commissions under the Securities Act.
EXPERTS
The consolidated financial statements of the Company as of June 30, 1995
and 1994, and for each of the years of the three-year period ended June 30,
1995, have been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
LEGAL MATTERS
Certain legal matters in connection with this offering are being passed
upon for the Company by Oscar D. Folger, Esq., 521 Fifth Avenue, New York, New
York 10175. Mr. Folger's wife owns 5,000 shares of the Common Stock of the
Company.
MATERIAL CHANGES
In January 1996, Solomon L. Mowshowitz, PhD, was appointed Vice President
Research and Development. In addition, Peter E. Herring was appointed Controller
and Peter Blackburn, PhD, Executive Vice President, assumed the responsibility
for managing relationships with corporate partners.
In March 1996, the Company entered into an agreement with Nippon Shoji
Kaisha, Ltd., of Osaka Japan ("NSK"), to develop the Company's antimicrobial
peptide nisin for the possible treatment of hospital-acquired infections and
infections of the colon in Japan, certain Asian countries, Australia and New
Zealand on an exclusive basis. Under the agreement, NSK purchased 315,408 shares
of Common Stock at $6.34 per share, was issued warrants to purchase an
additional 315,408 shares at $4.84 per share and loaned $2 million to the
Company for a three year term. NSK agreed to make reseach and milestone payments
to the Company, and, upon commercialization, will pay royalties to the Company.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents, which have been filed with the Commission by the
Company are incorporated herein by reference and made a part hereof. The
Commission file number for all documents which are incorporated by reference is
0-14983.
(1) Annual Report on Form 10-K for the fiscal year ended June 30, 1995.
(2) Quarterly Report on Form 10-Q for the three months ended September
30, 1995.
(3) Quarterly Report on Form 10-Q for the three months ended December
31, 1995.
(4) The section entitled "Description of Securities" in the Company's
Registration Statement on Form S-1 (Registration No. 33-4822) declared
effective on August 28, 1986.
In addition, any amendments to such document and all other reports, proxy
statements and other documents of the Company hereafter filed with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, prior to the termination of the offering of the securities
covered by this Prospectus, shall be deemed to be incorporated in this
Prospectus and made a part hereof by reference from the date of filing of each
such document. Any statement contained in an earlier document 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 other subsequently filed document which also is
incorporated or 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.
INDEMNIFICATION
The Company's by-laws provide that the Company will indemnify its directors
and officers to the fullest extent permitted by law. The New York Business
Corporation Law (the "BCL") provides that a corporation may indemnify a director
or officer, made a party to a derivative action, against reasonable expenses
actually and necessarily incurred by him in connection with the defense of such
action, except in relation to matters as to which such director or officer is
adjudged to have breached his duty to the corporation. In addition, the BCL
provides that a corporation may indemnify a director or officer, made, or
threatened to be made, a party to any action other than a derivative action on
behalf of the indemnifying corporation, whether civil or criminal, against
judgments, fines, amounts paid in settlement and reasonable expenses actually
and necessarily incurred as a result of such action, if such director or officer
acted in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation and, in criminal actions or proceedings, in
addition, had no reasonable cause to believe that his conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, or otherwise, the
Company 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.
ADDITIONAL INFORMATION
This Prospectus contains certain information concerning the Company and its
securities, but does not contain all the information set forth in the
Registration Statement and the Exhibits thereto filed with the Commission under
the Securities Act of 1933, as amended, to which reference is made. Any summary
from the Exhibits contained in this Prospectus is necessarily incomplete and
must not be considered as a full statement of the provisions of such
instruments.
APPLIED MICROBIOLOGY, INC.
375,408 Shares of Common Stock
---------------
PROSPECTUS
---------------
April ___, 1996
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus, 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 any offer to buy any
securities in any jurisdiction in which such an offer or solicitation would be
unlawful. Neither the delivery of this Prospectus nor any sale made hereunder
shall under any circumstances create any implication that there has been no
change in the affairs of the Company since the date hereof.
PART II
Information Not Required in Prospectus
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the
securities being registered under this Registration Statement are estimated as
follows:
Securities and Exchange Commission fee.... $ 680
Legal Fees and expenses................... 10,000
Accountant's fees and expenses............ 4,000
Miscellaneous............................. 1,320
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Total........................... $16,000
Item 15. Indemnification of Directors and Officers.
Section 5.04 of the Company's by-laws provides that the Company will
indemnify its directors and officers to the fullest extent permitted by law.
Section 722 of the New York Business Corporation Law provides that a
corporation may indemnify a director or officer, made a party to a derivative
action, against reasonable expenses actually and necessarily incurred by him in
connection with the defense of such action, except in relation to matters as to
which such director or officer is adjudged to have breached his duty to the
corporation. Such indemnification does not include amounts paid in settling or
otherwise disposing of a threatened or pending action which is settled or
otherwise disposed of without court approval.
Section 722 of the Business Corporation Law further provides that a
corporation may indemnify a director or officer, made, or threatened to be made,
a party to any action other than a derivative action on behalf of the
indemnifying corporation, whether civil or criminal, against judgments, fines,
amounts paid in settlement and reasonable expenses actually and necessarily
incurred as a result of such action, if such director or officer acted in good
faith, for a purpose which he reasonably believed to be in the best interests of
the corporation and, in criminal actions or proceedings, in addition, had no
reasonable cause to believe that his conduct was unlawful.
Section 723 specifies the manner in which payment of such indemnification
may be authorized by the corporation. It provides that indemnification by a
corporation is mandatory in any case in which the director or officer has been
completely successful, whether on the merits or otherwise, in defending an
action referred to in Section 722. In the event that the director or officer has
not been wholly successful or the action is settled, indemnification must be
authorized by the appropriate corporate action as set forth in Section 723.
Section 724 provides that upon application by a director or officer,
indemnification may be awarded by a court to the extent authorized under
Sections 722 and 723. Section 725 provides that no indemnification agreement in
any Certificate of Incorporation or By-Laws is valid unless consistent with the
statute. In addition, Section 725 contains certain other miscellaneous
provisions affecting the indemnification of directors and officers.
Insofar as indemnification by the Company for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions, or otherwise, the
Company 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 Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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.
Item 16. Exhibits.
Exhibit No. Description
- ----------- -----------
(5) Opinion of Oscar D. Folger
(23)(a) Consent of Oscar D. Folger (Included in Exhibit (5))
(23)(b) Consent of KPMG Peat Marwick LLP (Included in Part II)
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 fact 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. Notwithstanding the foregoing, any increase or decrease in the volume
of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the high and low and 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 percent 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 to such information 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 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 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 Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan's annual report pursuant to 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.
Signatures
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in Tarrytown, New York on the 12th day
of April 1996.
Applied Microbiology, Inc.
By: /s/ Fredric D. Price
Fredric D. Price, President, CEO and
Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Fredric D. Price as 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 sign any and all amendments
(including post-effective amendments) to this Registration Statement on Form S-3
and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933.
---------------
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Sheldon G. Gilgore Chairman of the Board March 26, 1996
Sheldon G. Gilgore
/s/ Fredric D. Price President, CEO and Director April 12, 1996
Fredric D. Price (Principal Financial Officer)
/s/ Ian Clack Director April 2, 1996
Ian Clack
/s/ Douglas A. Cotter Director March 26, 1996
Douglas A. Cotter
/s/ Audrey T. Cross Director March 26, 1996
Audrey T. Cross
/s/ John P. Friend Director March 27, 1996
John P. Friend
/s/ Robert E. Pollack Director March 26, 1996
Robert E. Pollack
/s/ Peter E. Herring Controller (Principal April 12, 1996
Peter E. Herring Accounting Officer)
April 12, 1996
Applied Microbiology, Inc.
771 Old Saw Mill River Road
Tarrytown, New York 10591
Re: Form S-3 Registration Statement
Gentlemen:
We have acted as counsel for Applied Microbiology, Inc., a New York
corporation (the "Company"), in connection with the registration by the Company
of 375,408 shares of Common Stock, par value $0.005 per share (the
"Securities"), which are the subject of a Registration Statement on Form S-3
under the Securities Act of 1933, as amended (the "Act").
As counsel to the Company we have examined and relied upon the original or
copies, certified or otherwise identified to our satisfaction, of such
documents, corporate records and other instruments as we have deemed necessary
in order to render the following opinion.
On the basis of and subject to the foregoing, it is our opinion that the
Securities issued or to be issued and sold or to be sold by the Company have
been duly authorized and are, or, when issued and sold, will be duly issued and
fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Matters" in the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the Rules and Regulations of the
Securities and Exchange Commission thereunder.
This opinion is to be used only in connection with the offer and sale of
the Securities as variously referred to herein while the Registration Statement
is in effect.
Very truly yours,
Oscar D. Folger
Independent Auditors' Consent
The Board of Directors
Applied Microbiology, Inc.:
We consent to the use of our report incorporated herein by reference and to
the reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG PEAT MARWICK LLP
New York, New York
April 12, 1996
