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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 29, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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BIOMATRIX, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 13-3058261
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) identification No.)
65 RAILROAD AVENUE,
RIDGEFIELD, NEW JERSEY 07657
(201) 945-9550
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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ENDRE A. BALAZS, M.D.
CHIEF EXECUTIVE OFFICER &
CHIEF SCIENTIFIC OFFICER
BIOMATRIX, INC.
65 Railroad Avenue
Ridgefield, New Jersey 07657
(201) 945-9550
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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WITH COPIES TO:
JUSTIN P. MORREALE, ESQ.
JOHN J. CONCANNON III, ESQ.
Bingham Dana LLP
150 Federal Street
Boston, MA 02110
(617) 951-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE
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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, check the following box. /X/
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER SHARE(1) OFFERING PRICE(1) REGISTRATION FEE
----------------------------- ------------------ ------------------- --------------------- ----------------
<S> <C> <C> <C> <C>
Common Stock
Par Value $.0001 per share 750,000 shares $33.0625 $24,796,875 $6,894
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(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended, upon the
basis of the average of the high and low prices on the New York Stock Exchange
of the registrant's common stock reported in the consolidated reporting system
as of April 28, 1999.
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 SECTION 8(a), MAY
DETERMINE.
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PROSPECTUS
THE INFORMATION CONTAINED IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE
CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
Subject to Completion, dated April 29, 1999
750,000 SHARES
BIOMATRIX, INC.
COMMON STOCK
The selling stockholder identified in this prospectus is selling
750,000 shares of common stock of Biomatrix, Inc. Biomatrix will not receive any
of the proceeds from the sale of common stock by the selling stockholder.
Biomatrix common stock is listed on the New York Stock Exchange under the symbol
"BXM". On April 28, 1999, the closing price of one share of Biomatrix common
stock on the New York Stock Exchange was $32.625.
INVESTING IN THE COMMON STOCK INVOLVES A HIGH DEGREE OF RISK.
SEE "RISK FACTORS" BEGINNING ON PAGE 2.
THE BIOMATRIX SHARES OFFERED OR SOLD UNDER THIS PROSPECTUS HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY STATE SECURITIES COMMISSION, NOR
HAVE THESE ORGANIZATIONS DETERMINED WHETHER THIS PROSPECTUS IS ACCURATE OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The selling stockholder may sell the shares of common stock described
in this prospectus in public or private transactions, on or off the New York
Stock Exchange, at prevailing market prices or at privately negotiated prices.
The selling stockholder may sell shares directly to purchasers or through
brokers or dealers. Brokers or dealers may receive compensation in the form of
discounts, concessions or commissions from the selling stockholder. More
information is provided in the section titled "Plan of Distribution."
The date of this prospectus is , 1999.
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RISK FACTORS
INVESTING IN BIOMATRIX SECURITIES INVOLVES RISKS. YOU SHOULD NOT
PURCHASE BIOMATRIX SECURITIES UNLESS YOU CAN BEAR A LOSS OF YOUR INVESTMENT. YOU
SHOULD CAREFULLY CONSIDER THE FOLLOWING FACTORS, IN ADDITION TO THE OTHER
INFORMATION IN THIS PROSPECTUS.
OUR INDUSTRY IS SUBJECT TO GOVERNMENT REGULATION
The FDA and foreign regulatory agencies regulate the commercial
distribution of our medical products. The FDA classifies medical products as
either medical devices or drugs/biologicals. Currently, the FDA and most foreign
regulatory agencies consider most of our medical products to be medical devices.
Some of our products are currently being reviewed for approval by various
regulatory agencies. The approval process is costly, complex, and
time-consuming, and it is possible that these approvals could be delayed or
never granted. The regulatory process can delay marketing new products for long
periods and can add substantial costs. In addition, changes in governmental
rules and regulations could affect us in ways we cannot predict. Changes could
affect products already approved for marketing, products that have not yet been
approved, or the approval process itself.
The FDA and foreign regulatory agencies inspect our manufacturing
facilities both before and after giving their approval to market a product.
Additionally, if a material change is made to the manufacturing process,
equipment, or location after receiving approval for marketing from regulatory
agencies, additional regulatory review may be necessary.
Our skin care products are not subject to pre-market approval
requirements or FDA mandated performance standards. However, they are subject to
provisions of law prohibiting the commercial marketing of misbranded or
adulterated products.
REIMBURSEMENT STANDARDS INFLUENCE OUR SALES
The availability of reimbursement by Medicare, Medicaid, private health
insurers, and other organizations may affect sales of our products. Limitations
on reimbursement may negatively impact sales of our medical products. In the
United States, the Health Care Finance Administration, also known as HCFA, and
many private health insurance organizations currently provide reimbursement for
Synvisc. Synvisc is currently reimbursed by all of the Medicare regional
insurance carriers. Synvisc is also on the list of government-reimbursable
products in Sweden. Currently, Synvisc has not been approved for reimbursement
by the Canadian provincial governments; several Canadian private insurance
companies do, however, provide reimbursement for Synvisc. In addition, we are
currently discussing reimbursement for Synvisc with European government
agencies. We do not expect insurance companies to pay for Hylaform, another of
our products. Changes in reimbursement policies could significantly reduce our
ability to sell our products.
WE DEPEND ON OUR DISTRIBUTION RELATIONSHIPS
We have entered into several distribution agreements for marketing and
distributing some of our products, including Synvisc and Hylaform. As a result,
we are dependent on our marketing partners for sales of our product in countries
in which we have marketing and distribution agreements. It is possible that we
will not be able to maintain our current arrangements, and if that happens, we
may not be able to replace them with other acceptable arrangements. It is also
possible that our marketing partners will not be able to market and distribute
our products successfully in the future.
WE MAY NOT BE ABLE TO PROTECT OUR INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
In order to protect our core hylan technology, we have obtained patents
on our technologies and on our products in key countries. We currently have 22
issued or allowed patents and 1 patent pending in the United States, and 88
issued or allowed patents and over 68 patents pending in foreign countries. We
cannot be sure that any patents pending or patent applications we may file in
the future will result in issued patents. Any patents we have now, or that may
be issued in the future, trade secrets or know-how may not be enough
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to protect our business against competitors with similar technologies or
processes. Others might still infringe upon or design around our issued patents.
In addition, others might develop proprietary technologies or processes on their
own which are the same as or substantially equivalent to ours. It could be very
expensive if we have to defend against patent infringement suits brought against
us or if we choose to sue others to protect our patents against infringement.
In addition to patent protection, we rely on trade secrets, proprietary
know-how and continuing technological developments. We generally try to protect
this information by entering into confidentiality agreements with our business
partners, employees and consultants. Certain people might break the promises
they make in these agreements. If they do, we may not be able to remedy the
damage they cause to our business. Even if everyone honors these agreements, our
competitors might still discover our trade secrets on their own.
COMPETITIVE PRODUCTS COULD INFLUENCE OUR SALES
We believe that our superior technology and our longstanding
know-how and experience give us our primary advantages over our competitors.
Competition for our product, Synvisc, consists primarily of products based on
earlier technology. These products include, in the United States, the
FDA-approved Hyalgan-Registered Trademark-, produced by Fidia S.p.A. and
marketed in the United States by OrthoLogic Corp. Another product based on
earlier technology is Orthovisc-Registered Trademark-, which failed in 1998
to receive approval from the FDA for marketing in the United States but is
marketed in Canada and in certain other countries. Orthovisc is produced by
Anika Therapeutics, Inc. and marketed by Zimmer, Inc. In Europe, the primary
competitive products are Hyalgan and Artz-Registered Trademark-, a Japanese
product. To the best of our knowledge, there are no other
viscosupplementation products on the market, or in development, which, like
Synvisc, have the physical properties of viscosity, elasticity or molecular
weight which are comparable to the physical properties of healthy, young
synovial fluid.
Our ability to compete depends primarily upon product acceptance by
doctors and other customers and whether or not health insurance will pay for
treatment with our products, as opposed to those of our competitors.
We believe our patents on hylans make it more difficult for others to
develop and sell products made from similar substances. However, a number of
potential competitors are trying to develop similar substances. Other substances
or technologies may be, now or in the future, the basis of competitive products
that could render our technology obsolete or non-competitive.
THE SUCCESS OF OUR OPERATIONS DEPENDS ON OUR MANUFACTURING CAPABILITIES
Biomatrix faces manufacturing risks. Our manufacturing process is
highly complex and is regulated by the government. It is possible that we will
have problems maintaining or expanding our facilities in the future. These
problems could cause delays in production or delivery delays. Any significant
disruption in our manufacturing operations could significantly hurt our
business, results of operations, and financial condition.
WE MAY HAVE DIFFICULTY MANAGING OUR RECENT EXPANSION
In 1998 alone we more than doubled the number of employees. Also, we
now operate and have employees in eight countries. This expansion requires that
we spend a significant amount of money to support what we hope will be increased
demand for our products. This strategy involves risks, which include supporting
higher levels of operating expenses, attracting and retaining employees, and
dealing with other management difficulties that arise from rapid growth. Any
failure to manage growth effectively could have a significant adverse effect on
our ability to run our business.
WE DEPEND ON OUR KEY PERSONNEL TO IMPLEMENT OUR STRATEGIC PLAN
Our future success is highly dependent on the members of our management
and scientific staff. The loss of one or more key employees could hurt us
significantly. We do not maintain any key person life
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insurance policies with respect to any of our employees. We have entered into
employment agreements with Dr. Endre A. Balazs, our Chief Executive Officer and
Chief Scientific Officer and Rory B. Riggs, our President. These agreements
restrict Dr. Balazs and Mr. Riggs from engaging in certain activities that are
competitive with Biomatrix. We have entered into similar agreements with most
but not all of our employees.
OUR OPERATING RESULTS MAY FLUCTUATE FROM PERIOD TO PERIOD
We have planned our operating expenses on the assumption that revenues
from sales will continue to grow. If these revenues do not grow as we have
projected, our operating results for a particular period may be lower than
expected. A revenue shortfall could result from a number of factors, including
but not limited to those described in this registration statement, lower than
expected demand for our products; fewer purchases of our products by our
distribution partners; inability to collect from those who owe us money, goods,
or services; manufacturing interruptions; and overall economic conditions.
WE COULD FACE PRODUCT LIABILITY CLAIMS
Producing and selling health-care products can lead to allegations of
product liability, and it is possible that product liability claims could be
brought against us. Although we carry product liability insurance in an amount
that we consider sufficient, we cannot be sure that the amount of coverage that
we currently hold, or will hold in the future, will be adequate. If our
insurance coverage is not sufficient we may not be able to satisfy liability
claims out of our other assets. If we attempt to obtain additional insurance in
the future, we may not be able to do so on acceptable terms, and any additional
insurance we do obtain may not provide adequate coverage against asserted
claims.
OUR STOCK PRICE HAS A HISTORY OF VOLATILITY
The market price of our common stock, like that of the securities of
many other biomedical and medical device companies, has fluctuated over a wide
range, and the market price of the shares of our common stock or other
securities could be highly volatile in the future. Factors including, but not
limited to, fluctuation in our operating results or our failure to meet the
expectations of the investment community, our ability to manufacture our
products, demand for our products, announcements of technological innovations or
new commercial products by us or our competitors, governmental regulation,
changes in insurance reimbursement policies, developments or disputes concerning
patent or other proprietary rights, public concern as to the safety of devices
or other products developed by us or our competitors, and general market
conditions may have a significant effect on the market price of our common stock
or other securities.
ALL OF OUR SYSTEMS MAY NOT BE YEAR 2000 COMPLIANT
Many currently installed computer systems, software products and
equipment with embedded chips or processors are programmed to accept only two
digit entries in the date code field. These date code fields will need to accept
four digit entries to distinguish 21st century dates from 20th century dates. As
a result, our software and computer systems may need to be upgraded or replaced
in order to comply with "Year 2000" requirements. We have implemented a Year
2000 compliance program to identify and minimize exposure to Year 2000 problems,
which includes an assessment of our internal readiness as well as the readiness
of third parties that are critical to our business. We may incur costs in
identifying, resolving and mitigating Year 2000 compliance issues. In addition,
we cannot guarantee that our Year 2000 issues will be fully identified and
resolved by the end of 1999. The failure to identify and resolve these issues
could result in interruptions in, or failures of, certain normal business
activities or operations that may have an adverse effect on our business,
results of operations and financial condition. The failure of third parties that
are significant to our business to be Year 2000 compliant could also have an
adverse effect on our business, results of operations and financial condition.
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FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, including but not limited to statements regarding
governmental regulation, reimbursement, dependence on distribution
relationships, patents, competition, manufacturing, rapid growth, dependence
upon key personnel, fluctuation in operating results, product liability, stock
price volatility, and Year 2000 matters. Forward-looking statements necessarily
involve risks and uncertainties, and Biomatrix's actual results could differ
materially from those anticipated in the forward-looking statements, including
those set forth herein under "Risk Factors" and elsewhere in this prospectus.
The factors set forth under "Risk Factors" and other cautionary statements made
in this prospectus should be read and understood as being applicable to all
related forward-looking statements wherever they appear in this prospectus.
BIOMATRIX
Together with our subsidiaries Biomatrix Medical Canada Inc., Biomatrix
Svenska AB, Biomatrix U.K. Limited, Biomatrix Hong Kong Limited, Biomatrix
France SARL, Biomatrix Switzerland GmbH, and Biomatrix Germany GmbH, we develop,
manufacture, market and sell a series of proprietary viscoelastic products made
of biological polymers called hylans for use in therapeutic medical applications
and skin care. Hylans are chemically modified forms of the naturally occurring
hyaluronan, also known as hyaluronic acid or sodium hyaluronate. Hylans are the
second generation of viscoelastics used in medicine, and are characterized by
significantly enhanced physical, or rheological, properties including
elasticity, viscosity and pseudoplasticity, as compared to naturally occurring
hyaluronan, from which the first generation viscoelastics are made. The
discovery of hylans has allowed us to develop a range of patented products with
superior viscoelastic properties in the forms of fluids, gels and solids.
Biomatrix was founded in 1981. In 1983, we established our research and
development department, laboratory facilities and a pilot manufacturing plant at
our corporate headquarters in Ridgefield, New Jersey. During the period from
1987 through 1995, we also conducted research and development work in Europe
through our wholly-owned subsidiary Biomatrix Svenska in Uppsala, Sweden.
Biomatrix Medical Canada was established in 1991 to manufacture medical products
and to market certain medical products in Canada. In 1997, Biomatrix UK,
Biomatrix Switzerland and Biomatrix Hong Kong were established to market and
sell certain medical products in the United Kingdom, Switzerland, and Hong Kong,
respectively. Biomatrix France was also established in 1997 to assist in
marketing certain products in France. In 1998, Biomatrix Germany was established
to assist in marketing certain products in Germany. In 1998, we completed
construction of a manufacturing plant in Ridgefield, New Jersey and commenced
manufacturing operations. We received ISO 9001/EN46001 certification of our
quality system for manufacturing viscoelastic medical therapeutics in the fourth
quarter of 1998. This certification permits us to manufacture and ship our
products from the New Jersey manufacturing facility to the 19 countries of the
European Economic Area and a number of countries in Latin America and Asia.
During the first quarter of 1999, we also received FDA approval to ship Synvisc
within the United States from our New Jersey manufacturing facility.
We believe that we are distinguished from other companies in the field
by our association with Dr. Endre A. Balazs, our co-founder and current Chief
Executive Officer and Chief Scientific Officer, who has authored numerous
publications on the medical applications of hyaluronan-based viscoelastic
products. Prior to the organization of Biomatrix, Dr. Balazs invented the use of
hyaluronan in medicine and developed the first generation hyaluronan-based
viscoelastics used in medicine worldwide. These products were based on a highly
purified fraction of the unmodified, naturally occurring hyaluronan. In 1993, we
obtained the rights from Dr. Balazs to use his first generation technology for
medical applications, except for ophthalmic viscosurgery.
Under Dr. Balazs' leadership, our scientists developed a new class of
biopolymers, called hylans. These polysaccharide molecules are derived by
chemical modification of hyaluronan. Our hylan products are highly biocompatible
like the naturally occurring hyaluronan, which allows them to be used in the
body without causing allergic or foreign body reactions. We believe that
products made of hylans are superior to the products made of first generation
hyaluronan due to their enhanced rheological properties and prolonged residence
time in tissues.
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Using our patented technology, we have developed clear elastoviscous
fluids, transparent viscoelastic semi-solid gels, solid particles, sheaths,
tubes and other useful configurations. This broad spectrum of proprietary
products is manufactured through several patented chemical modifications and
cross-linking processes.
Our business is to develop, manufacture, market and sell viscoelastics
used as medical therapeutic devices. The use of viscoelastics in medicine during
the past decades has created several new medical therapeutic modalities
including:
- VISCOAUGMENTATION, the use of viscoelastic gels for tissue
augmentation to provide a scaffolding for tissue regeneration or an
inert elastic filler in applications such as augmentation of dermal
tissue for the correction of facial wrinkles and depressed scars and
the augmentation of the sphincter muscle in urinary incontinence.
- VISCOPROTECTION, the use of elastoviscous fluids and viscoelastic
gels to shield and protect sensitive tissue surfaces, such as those
of the eye, from dryness and noxious environmental conditions.
- VISCOREGULATION, the use of the physical, or rheological, properties
of elastoviscous fluids and viscoelastic gels to regulate cell
activity, for example, the targeted delivery of drugs.
- VISCOSEPARATION, the use of viscoelastic gels, membranes and fluids
to separate tissues, prevent adhesions, and cover internal and
external wounds to facilitate wound healing and decrease scar
formation.
- VISCOSUPPLEMENTATION, the use of elastoviscous solutions and
viscoelastic gels in disease conditions to replace tissues and body
fluids.
- VISCOSURGERY, the use of elastoviscous fluids to facilitate surgical
procedures in ophthalmology, orthopedics and neurosurgery. The
viscoelastic acts as a surgical tool or implant to protect,
manipulate and separate delicate tissues.
Viscoelastic devices are ideally made from the body's own molecules
found in the intercellular matrix, the highly organized structure separating
cells and integrating them into functional tissues. Viscoelastic products are
used in medicine by introducing them into the intercellular matrix during, after
or instead of surgical procedures to supplement, augment, regulate and
manipulate the healing and regenerative processes of the body and to restore the
homeostasis (equilibrium) of the intercellular matrix. Therefore, the use of
viscoelastics for therapeutic purposes, i.e. engineering of the intercellular
matrix, is called matrix engineering.
For more detailed information about Biomatrix, you should review the
documents that we have filed with the SEC, including our Annual Report on Form
10-K for the 1998 fiscal year.
USE OF PROCEEDS
Biomatrix will not receive any proceeds from the sale of the shares of
common stock offered by Warburg Dillon Read LLC under this prospectus.
SELLING STOCKHOLDER
On May 14, 1998, we issued to Warburg Dillon Read, the selling
stockholder, a convertible subordinated note convertible into 375,000 shares of
Biomatrix common stock. As a result of a 2-for-1 stock split in the form of a
stock dividend effective April 16, 1999, the note became convertible into
750,000 shares of Biomatrix common stock. Under a Registration Rights Agreement
also dated May 14, 1998, we agreed to register all of the Biomatrix common stock
issuable upon conversion of the convertible note not later than May 14, 1999 and
to use our best efforts to keep the registration statement effective for one
year, or until Warburg Dillon Read sells all of the shares
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under the registration statement, whichever comes first. Our registration of the
shares of common stock does not necessarily mean that Warburg Dillon Read will
sell all or any of the shares.
Warburg Dillon Read reports to us that, as of April 14, 1999, it does
not beneficially own any Biomatrix common stock other than its right to receive
shares upon conversion of the convertible note described above.
Warburg Dillon Read has not, within the past three years, held any
position, or had any other material relationship with, Biomatrix. Because
Warburg Dillon Read may sell all or some of the shares of common stock it
beneficially owns, we can only estimate, by assuming Warburg Dillon Read will
sell all of the shares offered by this Prospectus, that Warburg Dillon Read will
not beneficially own any shares of Biomatrix common stock after this offering.
In addition, some information given to us by Warburg Dillon Read may have
changed, and may yet change, after the date on which it provided this
information to us. Beneficial ownership is determined in accordance with Rule
13d-3(d) under the Securities Exchange Act of 1934, as amended.
PLAN OF DISTRIBUTION
We have been advised by Warburg Dillon Read that the shares offered
hereby may be sold directly by Warburg Dillon Read from time to time to
purchasers. Alternatively, Warburg Dillon Read may from time to time offer the
shares to or through underwriters, brokers/dealers or agents, who may receive
compensation in the form of underwriting discounts, concessions or commissions
from Warburg Dillon Read or the purchasers of shares for whom they may act as
agents. Warburg Dillon Read and any underwriters, brokers/dealers or agents that
participate in the distribution of the shares may be deemed to be "underwriters"
within the meaning of the Securities Act and any profit realized by them on the
sale of such shares and any discounts, commissions, concessions or other
compensation received by any such underwriter, broker/dealer or agent may be
deemed to be underwriting discounts and commissions under the Securities Act.
We have been advised by Warburg Dillon Read that the shares may be sold
from time to time in one or more transactions at fixed prices, at market prices
prevailing at the time of sale, at varying prices determined at the time of sale
or at negotiated prices. The sale of shares may be effected in transactions,
which may involve crosses or block transactions, (i) on any national securities
exchange or quotation service on which the shares may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or in the over-the-counter market or (iv)
through the writing of options. At the time a particular offering of shares is
made, a supplement to this prospectus, if required, will be distributed which
will set forth the aggregate amount and type of shares being offered and the
terms of such offering, including the name or names of any underwriters,
brokers/dealers or agents, any discounts, commissions and other terms
constituting compensation from Warburg Dillon Read and any discounts,
commissions or concessions allowed or reallowed to be paid to broker/dealers.
We have been advised by Warburg Dillon Read that in connection with
distributions of the shares or otherwise, Warburg Dillon Read may enter into
hedging transactions with banks or broker-dealers. In connection with such
transactions, banks or broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with Warburg Dillon Read.
Warburg Dillon Read may also sell short and redeliver the shares to close out
such short positions. Warburg Dillon Read may also enter into option or other
transactions with banks or broker-dealers which require the delivery to the bank
or broker-dealer shares registered hereunder, which the bank or broker-dealer
may resell or otherwise transfer pursuant to this prospectus. Warburg Dillon
Read may also resell all or a portion of the shares in open-market transactions
in reliance on Rule 144 under the Securities Act of 1933, as amended, provided
that such transactions meet the criteria of and conform to the requirements of
such rule. Warburg Dillon Read may also make gifts of the shares or lend or
pledge the shares to a bank, broker-dealer or other pledgee, and the donee,
bank, broker-dealer or other pledgee may sell the shares so gifted, loaned, or
upon a default, the bank, broker-dealer or other pledgee may effect sales of the
pledged shares pursuant to this prospectus.
To comply with the securities laws of certain jurisdictions, if
applicable, the shares will be offered or sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in certain
jurisdictions the shares may not be offered or sold unless they have been
registered or qualified for sale in such jurisdictions or an exemption from
registration or qualification is available and complied with.
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Under Regulation M of the Exchange Act, any person engaged in a
distribution of the shares may be prohibited, with certain exceptions, from
bidding for or purchasing any security which is the subject of such distribution
until its participation in that distribution is completed. In addition,
Regulation M prohibits any stabilizing bid or stabilizing purchase for the
purpose of pegging, fixing or stabilizing the price of common stock in
connection with the offering of the shares pursuant to this prospectus.
We will pay all expenses of the registration of the shares, including,
without limitation, SEC filing fees and expenses of compliance with state
securities or "blue sky" laws; provided, however, that all underwriting
discounts, selling commissions and counsel fees, if any, of Warburg Dillon Read
will be paid by Warburg Dillon Read. Warburg Dillon Read will be indemnified by
Biomatrix against certain civil liabilities, including certain liabilities under
the Securities Act, or will be entitled to contribution in connection therewith.
LEGAL MATTERS
Bingham Dana LLP, Boston, Massachusetts will give its opinion that the
shares offered in this prospectus have been validly issued and are fully paid
and non-assessable. Justin P. Morreale, a partner at Bingham Dana LLP, is a
director of Biomatrix. Mr. Morreale, along with other partners at Bingham Dana
LLP, own a total of approximately 130,000 shares of Biomatrix common stock. John
J. Concannon III, also a partner of Bingham Dana LLP, is the Secretary of
Biomatrix.
EXPERTS
The consolidated financial statements of Biomatrix, Inc. as of December
31, 1998 and 1997 and for each of the three years in the period ended December
31, 1998, incorporated by reference in this prospectus and registration
statement, have been incorporated herein in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
that firm as experts in accounting and auditing.
WHERE YOU CAN GET MORE INFORMATION
We are a reporting company and file annual, quarterly and current
reports, proxy statements and other information with the SEC. You may read and
copy any materials we file with the SEC at the SEC's Public Reference Room at
450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for more information about the operation of the Public Reference
Room. The SEC also maintains an Internet site that contains reports, proxy and
information statements, and other information regarding issuers that file
electronically with the SEC (at http://www.sec.gov).
The SEC allows us to "incorporate by reference" information that we
file with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We incorporate
by reference the documents listed below and any future filings we will make with
the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act
of 1934:
- Annual Report on Form 10-K for the year ended December 31, 1998;
- Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
- The description of the common stock contained in Biomatrix's
Registration Statement on Form 8-A filed June 12, 1998 with the SEC
under the Securities Exchange Act of 1934.
8
<PAGE>
You may request a copy of these filings at no cost, by writing,
telephoning or e-mailing us at the following address:
Biomatrix, Inc.
65 Railroad Avenue
Ridgefield, NJ 07657
Attn: Investor Relations
(201) 945-9550
[email protected]
This prospectus is part of a registration statement we filed with the
SEC. You should rely only on the information incorporated by reference or
provided in this prospectus. We have not authorized anyone to provide you with
different information. We are not making an offer of these securities in any
state where the offer is not permitted. You should not assume that the
information in this prospectus is accurate as of any date other than the date on
the front of this document.
9
<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 are set forth in the following table (all amounts
except the registration fee and the listing fee are estimated):
<TABLE>
<S> <C>
SEC Registration Fee.................................... $6,894
New York Stock Exchange Listing Fees.................... 1,500
Legal Fees and Expenses................................. 10,000
Accountants' Fees and Expenses.......................... 1,500
Miscellaneous Costs..................................... 1,106
Total............................................. $21,000
</TABLE>
Biomatrix will bear all expenses in connection with the issuance and
distribution of the common stock being offered hereby.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 ("Section 145") of the Delaware General Corporation Law
provides a detailed statutory framework covering indemnification of directors
and officers against liabilities and expenses arising out of legal proceedings
brought against them by reason of their status or service as directors or
officers. Article Six of the Biomatrix Amended and Restated Certificate of
Incorporation and Article VII of the Biomatrix Amended and Restated By-Laws
provide for indemnification of directors and officers to the full extent
permitted by Section 145. Section 145 generally provides that a director or
officer of a corporation (i) shall be indemnified by the corporation for all
expenses of such legal proceedings when he or she is successful on the merits,
(ii) may be indemnified by the corporation for the expenses, judgments, fines
and amounts paid in settlement of such proceedings (other than a derivative
suit), even if he or she is not successful on the merits, if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation (and, in the case of a criminal
proceeding, had no reasonable cause to believe that his or her conduct was
unlawful), and (iii) may be indemnified by the corporation for expenses of a
derivative suit (a suit by a shareholder alleging a breach by a director or
officer of a duty owed to the corporation), even if he or she is not successful
on the merits, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation. No indemnification may be made under clause (iii) above, however,
if the director or officer is adjudged liable to the corporation, unless a court
determines that, despite such adjudication, but in view of all the
circumstances, he or she is entitled to indemnification. The indemnification
described in clauses (ii) or (iii) above may be made only upon a determination
that indemnification is proper because the applicable standard of conduct has
been met. Such a determination may be made by a majority of a quorum of
disinterested directors, independent legal counsel, the stockholders or a court
of competent jurisdiction. The board of directors may authorize advancing
litigation expenses to a director or officer upon receipt of an undertaking by
such director or officer to repay such expenses if it is ultimately determined
that he or she is not entitled to be indemnified for them.
Biomatrix does maintain insurance for the benefit of its directors,
officers, employees, agents and certain other persons, insuring such persons
against any expense, liability, or loss, including liability under the
securities laws.
The Registration Rights Agreement between Biomatrix and Warburg Dillon
Read dated as of May 14, 1998, provides that we will indemnify Warburg Dillon
Read and each person who participates as a placement or sales agent or as an
underwriter in any offering or sale of the shares against certain liabilities
under the Securities Act of 1933, as amended, or otherwise, and provides that
Warburg Dillon Read will indemnify Biomatrix against certain liabilities under
the Securities Act or otherwise.
<PAGE>
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C>
5 Opinion of Bingham Dana LLP
23.1 Consent of Bingham Dana LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature pages)
</TABLE>
ITEM 17. 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;
(ii) To reflect in the prospectus any facts 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 volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high 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 information required to be
included in a post-effective amendment by those
paragraphs is contained in periodic reports filed
with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934, as amended (the
"Exchange Act") that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act, 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.
(B) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities
Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) 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.
<PAGE>
(C) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant, Biomatrix, Inc., certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Town of Ridgefield, State of New
Jersey, on this 29th day of April 1999.
BIOMATRIX, INC.
By: /s/ Endre A. Balazs
----------------------------
Endre A. Balazs
CHIEF EXECUTIVE OFFICER,
CHIEF SCIENTIFIC OFFICER AND
DIRECTOR
<PAGE>
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Endre A.
Balazs, Rory B. Riggs, Maxine Seifert, Justin P. Morreale, John J. Concannon
III, and each of them severally, acting alone and without the other, his/her
true and lawful attorney-in-fact with the authority to execute in the name of
each such person, any and all amendments (including without limitation,
post-effective amendments) to this registration statement on Form S-3, to sign
any and all additional registration statements relating to the same offering of
securities as this registration statement that are filed pursuant to Rule 462(b)
of the Securities Act, and to file such registration statements with the
Securities and Exchange Commission, together with any exhibits thereto and other
documents therewith, necessary or advisable to enable the Registrant to comply
with the Securities Act of 1933, as amended, and any rules, regulations and
requirements of the Securities and Exchange Commission in respect thereof, which
amendments may make such other changes in the registration statement as the
aforesaid attorney-in-fact executing the same deems appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed below by the following persons in
the capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Endre A. Balazs Chief Executive Officer, Chief Scientific Officer and April 29, 1999
- --------------------------------- Director (principal executive officer)
Endre A. Balazs
/s/ Rory B. Riggs President April 29, 1999
- --------------------------------
Rory B. Riggs
/s/ Maxine Seifert Chief Financial Officer (principal financial and April 29, 1999
- -------------------------------- accounting officer)
Maxine Seifert
/s/ H. Stuart Campbell Chairman of the Board of Directors April 29, 1999
- --------------------------------
H. Stuart Campbell
/s/ Janet L. Denlinger Executive Vice President and Director April 29, 1999
- --------------------------------
Janet L. Denlinger
/s/ Kurt Mark Director April 29, 1999
- --------------------------------
Kurt Mark
/s/ Justin P. Morreale Director April 29, 1999
- --------------------------------
Justin P. Morreale
Director
- --------------------------------
Julius A. Vida
</TABLE>
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C>
5 Opinion of Bingham Dana LLP
23.1 Consent of Bingham Dana LLP (included in Exhibit 5)
23.2 Consent of PricewaterhouseCoopers LLP
24 Power of Attorney (included in signature page)
</TABLE>
<PAGE>
Exhibit 5
April 29, 1999
Biomatrix, Inc.
65 Railroad Avenue
Ridgefield, New Jersey 07657
Dear Sir or Madam:
We have acted as counsel for Biomatrix, Inc., a Delaware corporation
(the "Company"), in connection with the Company's Registration Statement on Form
S-3 proposed to be filed with the Securities and Exchange Commission on or about
April 29, 1999 (the "Registration Statement").
The Registration Statement covers the registration for resale by
Warburg Dillon Read LLC ("Warburg") of 750,000 shares of common stock, $0.0001
par value per share, of the Company (the "Shares"), which may be issued by the
Company to Warburg upon conversion of a 6.9% Convertible Subordinated Note Due
May 14, 2003 made by the Company to Warburg on May 14, 1998 (the "Note").
We have reviewed the corporate proceedings of the Company with respect
to the authorization of the Note and the issuance of the Shares thereunder. We
have also examined and relied upon originals or copies, certified or otherwise
identified or authenticated to our satisfaction, of such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume that all Shares issued upon conversion of the Note
will be issued in accordance with the terms and conditions set forth in the
Note.
Subject to the limitations set forth below, we have made such
examination of law as we have deemed necessary for the purposes of this opinion.
This
<PAGE>
Biomatrix, Inc.
April 29, 1999
Page 2
opinion is limited solely to the General Corporation Law of the State of
Delaware as applied by courts located in Delaware.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon conversion of the Note, will be validly
issued, fully paid, and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Bingham Dana LLP
BINGHAM DANA LLP
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Biomatrix, Inc. on Form S-3 of our report dated February 17, 1999, on our
audits of the consolidated financial statements of Biomatrix, Inc. as of
December 31, 1998 and 1997, and for each of the years in the three year
period ended December 31, 1998 which report is included in the Company's
Annual Report on Form 10-K for the year ended December 31, 1998. We also
consent to the reference to our firm under the caption "Experts."
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
New York, NY
April 28, 1999
