<PAGE>
As filed with the Securities and Exchange Commission on August 8, 1996
Registration Statement No. _______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
APPLIED MICROBIOLOGY, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<S> <C> <C>
New York 2083 11-2653613
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation) Classification Code Number)
</TABLE>
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, (Name, address, including zip
and telephone number, code, and telephone number,
including area code, of including area code, of agent
registrant's principal for service)
executive offices)
1991 STOCK OPTION PLAN
(Full Title of Plan)
--------------------
Copies of All Communications 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/
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities Being Amount Being Offering Price per Aggregate Offering Registration Fee
Registered Registered Share (1) Price
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,500,000 (2) $4.25 $6,375,000 $2,198.28
==================================================================================================================================
</TABLE>
(1) Estimated for purposes of computing the registration fee pursuant to Rule
457(c) at $4.25 per share based upon the average of the high and low prices of
$4.375 and $4.125 respectively, on August 5, 1996.
(2) The total number of shares that may be issued upon exercise of options
under Registrant's 1991 Stock Option Plan (the "Plan") is 2,860,500. The Plan
was registered on a registration statement on Form S-8 (Registration No.
33-73332) which became effective on December 23, 1993 (the "Registration
Statement"). The number of shares registered herewith corresponds to the number
of additional options the Registrant is currently authorized to grant under the
Plan. The contents of the Registration Statement are herein incorporated by
reference.
<PAGE>
PROSPECTUS
APPLIED MICROBIOLOGY, INC.
3,000,000 shares of Common Stock
--------------------------------
This Prospectus relates to 3,000,000 shares of Common Stock, $.005 par
value, (the "Shares") which are issuable pursuant to the 1991 Stock Option Plan
(the "Plan") of Applied Microbiology, Inc. (the "Company"). Any Shares which
are offered will be offered for the respective accounts of the Selling Security
Holders. This Prospectus does not relate to the sale or issuance by the Company
of any securities. The Company will not receive any proceeds from the sale of
the Shares by the Selling Security Holders. The Company will receive exercise
prices upon exercise of the options.
The Company has been advised by the Selling Security Holders that
there are no underwriting arrangements with respect to the sale of the Shares,
that the Shares 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 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 August 5, 1996, the
last sale price for the Company's Common Stock was $4.125.
---------------------
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.
The date of this Prospectus is August __, 1996
<PAGE>
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.
4
<PAGE>
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(R) 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
5
<PAGE>
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 initially 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.
6
<PAGE>
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.
7
<PAGE>
USE OF PROCEEDS
Should all the options outstanding under the Plan as of the date
hereof be exercised, the net proceeds to the Company would be approximately
$6,100,000 after deducting expenses of the offering estimated at $9,000. All
such proceeds will be added to the Company's working capital. The Company has
not made any specific allocations as to the use of any such proceeds. Prior to
expenditure, the proceeds will be invested in short-term interest bearing
securities or money market funds. Any income from such investments will also be
added to working capital. There can be no assurances that the Company will
receive any proceeds from the exercise of the options and not all options may
be exercised which could result in the proceeds of this offering to the Company
being minimal.
The Company will not be entitled to the proceeds of any shares of
Common Stock which are sold by the Selling Shareholders.
Without the proceeds of this offering, the Company has sufficient
financing in order to continue its operations for at least the next 12 months.
To meet its long-term objectives, the Company will be required to generate
significant revenues from operations or to obtain additional financing.
SELLING SECURITY HOLDERS
The securities being offered hereby are for the accounts of the
following persons who are directors or officers of the Company or its
subsidiary:
Securities Owned Securities Securities to be
Name Before Offering to be Sold Owned after Offering
- ---- ---------------- ---------- --------------------
Stephen C. Benoit 70,000 70,000 0
Douglas A. Cotter 21,000 20,000 1,000
Audrey T. Cross 24,000 20,000 4,000
Robert J. Evans 40,000 40,000 0
Sheldon G. Gilgore 115,000 110,000 5,000
Peter E. Herring 45,000 45,000 0
Solomon L. Mowshowitz 51,000 51,000 0
Keith J. Perrett 30,000 30,000 0
Robert E. Pollack 30,000 30,000 0
Fredric D. Price 550,325 535,000 15,325
Benjamin T. Sporn 111,625 82,500 29,125
A. John Trigg 20,000 20,000 0
Margaret Uttley 30,000 30,000 0
- --------------------
8
<PAGE>
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
There have been no material changes in the Company's business since
the filing of its most recent quarterly report on Form 10-Q on May 15, 1996.
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 six months ended
December 31, 1995.
(4) Quarterly Report on Form 10-Q for the nine months ended
March 31, 1996.
(5) 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.
(6) Registration Statement on Form S-8 (Registration No.
33-73332) which became effective December 23, 1993.
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.
9
<PAGE>
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.
10
<PAGE>
APPLIED MICROBIOLOGY, INC.
3,000,000 Shares of Common Stock
----------------------
PROSPECTUS
----------------------
August ___, 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.
11
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
See "Incorporation of Certain Information by Reference."
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
See "Legal Matters."
Item 6. 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
12
<PAGE>
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 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
(3) Amendment to Registrant's Certificate of Incorporation
(5) Opinion of Oscar D. Folger as to legality
(24)(a) Consent of Oscar D. Folger (included in Exhibit 5)
(24)(b) Consent of KPMG Peat Marwick LLP
(28) Form of 1991 Stock Option Plan(1)
- ----------------------------
(1) Incorporated by reference to the Company's Report on Form 10-K
for 1991.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act 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.
13
<PAGE>
(b) The undersigned registrant hereby undertakes 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing provisions, or
otherwise, 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
Registrant of expenses paid or incurred by a director, officer or controlling
person of 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, Registrant will, unless in the
opinion of its counsel the matter has been settled by controlling precedent,
submit to the 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.
14
<PAGE>
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 8th day of August, 1996.
Applied Microbiology, Inc.
By: /s/ Fredric D. Price
-----------------------------
Fredric D. Price
President, CEO and Director
15
<PAGE>
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-8 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 , 1996
/s/
- --------------------
Fredric D. Price President, CEO and Director , 1996
(Principal Financial Officer)
/s/
- --------------------
Colin Kop Director , 1996
/s/
- --------------------
Douglas A. Cotter Director , 1996
/s/
- --------------------
Audrey T. Cross Director , 1996
/s/
- --------------------
John P. Friend Director , 1996
/s/
- --------------------
Robert E. Pollack Director , 1996
/s/
- --------------------
Peter E. Herring Controller (Principal , 1996
Accounting Officer)
16
Exhibit 3
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
APPLIED MICROBIOLOGY, INC.
Under Section 805 of the Business Corporation Law
* * * * *
WE, THE UNDERSIGNED, Fredric D. Price and Benjamin Sporn, being
respectively the President and Chief Executive Officer and the Secretary of
Applied Microbiology, Inc. hereby certify:
1. The name of the corporation is APPLIED MICROBIOLOGY, INC.
2. The certificate of incorporation of said corporation was filed with
the Department of State on June 29, 1983. The name under which the corporation
was formed was APPLIED MICROBIOLOGY, INC.
3. (a) The certificate of incorporation is amended to increase the
aggregate number of shares of Common Stock, which the corporation shall have
the authority to issue from 25,000,000 to 40,000,000.
(b) To effect the foregoing, paragraph (a) of Article FOURTH,
relating to the number of shares the corporation shall have the authority to
issue shall be amended to read in its entirety as follows:
"(a) The aggregate number of shares which the Corporation shall
have the authority to issue its 45,000,000, which are divided into
40,000,000 shares of Common Stock of a par value of $.005 per share and
5,000,000 shares of Preferred Stock of a par value of $.01 per share."
4. The amendment to the Certificate of Incorporation was authorized by
vote of the holders of a majority of all outstanding shares entitled to vote at
a meeting held on the 20th day of March 1996, and by the affirmative vote of
the Board of Directors.
IN WITNESS WHEREOF, we have signed this certificate this 16th day of
April, 1996 and we affirm the statements contained therein as true under
penalties of perjury.
/s/ Fredric D. Price
-----------------------------
Fredric D. Price
President and
Chief Executive Officer
/s/ Benjamin Sporn
-----------------------------
Benjamin Sporn, Secretary
Exhibit 5
The Law Offices of Oscar D. Folger
24th Floor
521 Fifth Avenue
New York, New York 10175
212-697-6464 Telephone
212-697-9570 Telecopier
August 8, 1996
Applied Microbiology, Inc.
771 Old Saw Mill River Road
Tarrytown, New York 10591
Re: Form S-8 Registration Statement
Gentlemen:
We have acted as counsel to Applied Microbiology, Inc., a New York
corporation (the "Company") in connection with the registration by the Company
of 1,500,000 shares of its common stock, $.005 par value (the "Shares") which
are issuable under the Company's 1991 Stock Option Plan (the "Plan") and which
are the subject of a Registration Statement on Form S-8 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 of 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.
Based upon the foregoing, we are of the opinion that the Shares to be
issued by the Company pursuant to the Plan are duly authorized and, when issued
and paid for in accordance with the Plan as described in the Registration
Statement, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, however, we do not hereby imply
or admit that we are within the category of persons whose consent is required
under Section 7 of the Act or under the General Rules and Regulations of the
Securities and Exchange Commission adopted thereunder.
Very truly yours,
/s/ Oscar D. Folger
Oscar D. Folger
Exhibit 24(b)
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
August 8, 1996
