<PAGE>
As filed with the Securities and Exchange Commission on June 12, 1996
Registration Statement No. ______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------
APPLIED MICROBIOLOGY, INC.
(Exact name of registrant as specified in its charter)
New York 2083 11-2653613
(State or other (Primary Standard (I.R.S.
jurisdiction of Industrial Classification Employer
incorporation) Code Number) Identification No.)
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
and telephone number, including zip code, and telephone number,
area code, of registrant's principal including area code, of agent
executive offices) for service)
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/
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum Amount of
Title of Each Class of Securities Amount Being Offering Price Aggregate Registration Fee
Being Registered Registered per Share (1) Offering Price
- --------------------------------- ------------ ----------------- ---------------- -----------------
<S> <C> <C> <C> <C>
Common Stock 1,440,000 $7.03125 $10,125,000 $3,491.38
</TABLE>
(1) Estimated for purposes of computing the registration fee pursuant to Rule
457(c) at $7.03125 per Share based upon the average of the high and low prices
of $7.3125 and $6.75 respectively, on June 10, 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.
----------------------
2
<PAGE>
PROSPECTUS
APPLIED MICROBIOLOGY, INC.
1,440,000 Shares of Common Stock
--------------------------------
This Prospectus relates to an aggregate of 1,440,000 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 June 10, 1996, the last
sale price for the Company's Common Stock was $7.25.
---------------------
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.
<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 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
5
<PAGE>
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 be 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.
6
<PAGE>
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>
SELLING SECURITY HOLDERS
The securities being offered hereby are for the accounts of the
following persons:
Securities Owned Securities Securities to be
Name Before Offering to be Sold Owned after Offering
Burns Philp
& Company Limited 11,583,837(1) 1,400,000 10,183,837
Core Communications
Group, Inc. 40,000(2) 5,000 35,000
Gelvin Stevenson 18,160(3) 2,000 16,160
Michael J. Bruderman 7,000(2) 2,000 5,000
Thomas H. Bruderman 41,000(2) 6,000 35,000
Prebin Daltoft 10,000(3) 7,500 2,500
Lance R. Dalton 10,000(2) 10,000 -0-
Robert M. Reich 9,937(3) 7,500 2,437
- --------------------
(1) Consists of shares of Common Stock.
(2) Consists of shares of Common Stock issuable upon exercise of warrants.
(3) Includes 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
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<PAGE>
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 were no material changes required to be reported under this item.
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) Quarterly Report on Form 10-Q for the three 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.
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
9
<PAGE>
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.
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<PAGE>
APPLIED MICROBIOLOGY, INC.
1,440,000 Shares of Common Stock
----------------------
PROSPECTUS
----------------------
June ___, 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.
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<PAGE>
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.......... $ 3,491
Legal Fees and expenses......................... 10,000
Accountant's fees and expenses.................. 4,000
Miscellaneous................................... 509
-------
Total......................... $18,000
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
12
<PAGE>
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
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
13
<PAGE>
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.
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 7th day of
June 1996.
Applied Microbiology, Inc.
By: /s/
-------------------------------------
Fredric D. Price, President, CEO and
Director
<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-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/
- ------------------------
Douglas A. Cotter Director June 8, 1996
- ------------------------
Audrey T. Cross Director
/s/
- ------------------------
John P. Friend Director June 7, 1996
- ---------------------------
Sheldon G. Gilgore Chairman of the Board
/s/
- ------------------------
Colin Kop Director June 8, 1996
/s/
- ------------------------
Peter E. Herring Controller (Principal June 7, 1996
Accounting Officer)
/s/
- ------------------------
Robert E. Pollack Director June 7, 1996
/s/
- ------------------------
Fredric D. Price President, CEO and
Director June 7, 1996
(Principal Financial
Officer)
<PAGE>
June 11, 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 1,440,000 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,
/s/ 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
June 11, 1996
