As filed with the Securities and Exchange Commission on May 5, 2000.
Registration No.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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APPLIED BIOMETRICS, INC.
(Exact name of registrant as specified in its charter)
MINNESOTA 41-1508112
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
ANDREW M. WEISS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
501 EAST HIGHWAY 13, SUITE 108 501 EAST HIGHWAY 13, SUITE 108
BURNSVILLE, MINNESOTA 55337 BURNSVILLE, MINNESOTA 55337
(952) 890-1123 (952) 890-1123
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of registrant's principal executive area code, of agent for service)
offices)
With Copies to:
Bruce A. Machmeier, Esq. and Michael J. Kolar, Esq.
Oppenheimer Wolff & Donnelly LLP
Plaza VII, Suite 3400, 45 South Seventh Street
Minneapolis, Minnesota 55402
(612) 607-7000
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
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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, other than securities offered only in connection with
dividend or interest reinvestment plans, 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. |_|
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION FEE
SECURITIES TO BE REGISTERED REGISTERED (1) PER SHARE (2) PRICE (2) (2)
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<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per share.... 1,102,500 shares $ 3.00 $ 3,307,500 $ 874
======================================================================================================================
</TABLE>
(1) In addition, pursuant to rule 416(c) under the Securities Act of 1933, as
amended (the "Securities Act"), this Registration Statement also covers an
indeterminate number of shares as may be issued in respect of stock splits,
stock dividends and similar transactions.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457 under the Securities Act on the basis
of the average of the high and low reported sales prices of the
Registrant's Common Stock on May 2, 2000 on the Nasdaq SmallCap Market.
---------------
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.
================================================================================
<PAGE>
THE INFORMATION CONTAINED IN THIS PRELIMINARY PROSPECTUS IS NOT
COMPLETE AND MAY BE CHANGED. THESE SECURITIES MAY NOT BE SOLD UNTIL A
REGISTRATION STATEMENT COVERING THE SECURITIES AND FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL NOR
DOES IT SEEK AN OFFER TO BUY THESE SECURITIES IN ANY JURISDICTION WHERE THE
OFFER OR SALE IS NOT PERMITTED.
- --------------------------------------------------------------------------------
SUBJECT TO COMPLETION, DATED MAY 5, 2000
PRELIMINARY PROSPECTUS
1,102,500 SHARES
[LOGO] APPLIED BIOMETRICS
COMMON STOCK
-----------------------
By means of this prospectus, certain shareholders of Applied
Biometrics, Inc. are offering to sell up to 1,102,500 shares of Applied
Biometrics' common stock. These shares include shares that were issued and sold
in private placements as well as shares that are issuable upon exercise of
outstanding warrants.
The prices at which these selling shareholders may sell their shares
will be determined by the prevailing market price for our common stock or in
negotiated transactions. We will not receive any proceeds from their sale of
such shares.
Our common stock is listed on the Nasdaq SmallCap Market and trades
under the symbol "ABIO." On May 2, 2000, the closing price of a share of our
common stock on the Nasdaq SmallCap Market was $ 3.00.
INVESTING IN OUR COMMON STOCK INVOLVES RISKS. SEE "RISK FACTORS"
BEGINNING ON PAGE 4.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
-----------------------
THE DATE OF THIS PROSPECTUS IS _______, 2000.
<PAGE>
TABLE OF CONTENTS
Page No.
--------
Where You Can Find More Information ........................................3
Forward Looking Statements .................................................4
About Applied Biometrics....................................................4
Risk Factors................................................................4
Plan of Distribution........................................................11
Selling Shareholders........................................................14
Legal Matters...............................................................17
Experts.....................................................................17
------------------------------
You may rely only on the information contained in this prospectus. We
have not authorized anyone to provide information different from that contained
in this prospectus. Neither the delivery of this prospectus nor the sale of
common stock means that the information contained in this prospectus is correct
after the date of this prospectus. This prospectus is not an offer to sell or a
solicitation of an offer to buy shares of our common stock in any circumstances
under which the offer or solicitation is unlawful.
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy any document we file 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 further information on the
operation of the Public Reference Room. Our SEC filings are also available to
the public at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" into this prospectus
the information contained in the documents 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 considered to be part of
this prospectus, and later information that we file with the SEC will update and
supersede this information. We are incorporating by reference the following
documents:
(a) our Annual Report on Form 10-K for the year ended December 31,
1999,
(b) our Current Report on Form 8-K, filed on April 17, 2000,
(c) our Quarterly Report on Form 10-Q for the period ended March
31, 2000, and
(d) the description of our common stock contained in our
registration statement on Form 8-A filed on July 23, 1993 and
amended by a Form 8-A/A filed on July 30, 1993, as well as any
subsequent amendments or reports filed for the purpose of
updating such description.
We are also incorporating by reference any future filings we make with
the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act
of 1934 until the distribution is completed. Our SEC file number is 0-22146.
You may request a copy of these filings, at no cost, by writing to our
Corporate Secretary at Applied Biometrics, Inc., 501 East Highway 13, Suite 108,
Burnsville, Minnesota 55337 or by telephone at (952) 890-1123.
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FORWARD LOOKING STATEMENTS
This prospectus contains "forward looking statements" within the
meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking
statements can be identified by the use of words such as "expect," "anticipate,"
"plan," "may," "estimate" or other similar expressions. These statements involve
known and unknown risks, uncertainties and other factors which may cause the
actual results to differ materially from any future results, performance or
achievements expressed in or implied by forward looking statements. Factors that
may impact forward looking statements include, among other things:
* our dependence on and need for further development of the
Basis System, our only product,
* our limited experience and financial resources,
* the uncertainty of our future results,
* the uncertainty of market acceptance of the Basis System,
* our need for additional financing,
* the regulated nature of the medical device market,
* competitive factors, and
* other risk factors discussed in the "Risk Factors" section
below in this prospectus and from time to time in our filings
with the Securities and Exchange Commission.
ABOUT APPLIED BIOMETRICS
We are a late-development stage medical device company engaged in the
researching, developing, manufacturing and marketing advanced cardio-vascular
and hemodynamic diagnostic and monitoring systems. We believe that our core
competencies in ultrasound technology, signal processing, cardiac anatomy, and
hemodynamics position us to develop and commercialize a range of cardiac
diagnostic and patient monitoring products. Our Basis(TM) Cardiac Output Monitor
and RealFlow(TM) Cardiac Output Probe, used together and called the "Basis
System," are designed to provide real-time cardiac output monitoring in surgical
and post-operative, intensive care unit settings.
Applied Biometrics was founded in 1984 to develop and market a cardiac
output monitoring system using an ultrasound probe mounted in an endotrachial
tube. After a number of years of research and development, we decided in 1996 to
focus our efforts on a derivative of this device; a new, intra-operative cardiac
output system using a disposable ultrasound probe applied directly to the
ascending aorta. These efforts have resulted in the Basis System, which is in
the final stages of development.
We are incorporated in Minnesota and have our principal executive
offices at 501 East Highway 13, Suite 108, Burnsville, Minnesota 55337. Our
telephone number is (952) 890-1123.
RISK FACTORS
AN INVESTMENT IN THE SHARES INVOLVES A HIGH DEGREE OF RISK AND SHOULD
BE MADE ONLY BY PERSONS WHO CAN AFFORD TO LOSE THEIR ENTIRE INVESTMENT.
INVESTORS SHOULD CAREFULLY CONSIDER THE FOLLOWING RISK FACTORS AS WELL AS ALL OF
THE OTHER MATTERS SET FORTH ELSEWHERE IN THIS PROSPECTUS.
WE HAVE A HISTORY OF LOSSES AND ANTICIPATE FUTURE LOSSES AND CANNOT ASSURE YOU
OF OUR ABILITY TO CONTINUE AS A GOING CONCERN
We have experienced continued and significant operating losses since
our inception in 1984 that have resulted in an accumulated deficit. We
anticipate continuing operating losses for the near future.
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Our ability to continue as a going concern or to ultimately generate revenues
from operations and achieve profitability depend on a number of factors,
including:
* our ability to successfully complete development work on and
commercialize the Basis System, and
* the costs and time needed to implement our marketing, sales
and manufacturing activities.
We cannot assure you that we will be able to successfully introduce the
Basis System, generate revenues, or achieve profitability at any time in the
future.
WE ARE DEPENDENT ON THE BASIS SYSTEM AS OUR SOLE PRODUCT, AND MAY BE
UNSUCCESSFUL IN COMPLETING ITS DEVELOPMENT
Our success depends on the Basis System, which currently is our only
product. Although product prototypes were found to perform consistently with our
expectations in lab and mammal tests, early results from our product evaluations
of the Basis System indicated the need for modifications in order to meet our
product performance expectations. Although we believe that we have made
significant progress completing certain of these modifications and are
conducting additional product evaluations, we cannot be certain that all
necessary modifications have been or can be timely and successfully developed.
If we are unable to timely and successfully make necessary product
modifications, this could delay or prevent successful commercialization of the
Basis System and would have a material, adverse effect on our business.
WE PREVIOUSLY FAILED IN MARKETING TWO PRIOR DEVICES, AND CANNOT ASSURE YOU THAT
PERFORMANCE PROBLEMS WILL NOT OCCUR IN THE BASIS SYSTEM
From 1984 to 1994, we developed and marketed two ultrasound-based
cardiac output devices. The first device was integrated into an endotrachial
tube. The second device was a predecessor to the current Basis System. Both
products were sold in the 1990's in small quantities. We discontinued our
selling activities because of unreliable product performance caused primarily by
inadequate probe sensitivity, signal processing difficulties, and hardware
performance constraints. Although we believe that the Basis System includes
design changes that correct the problems in the prior systems, we cannot be
certain that performance problems will not occur in clinical use of the Basis
System, or that problems will not adversely affect our ability to sell this
product and in turn, adversely affect our business.
WE ANTICIPATE NEEDING ADDITIONAL FINANCING IN THE NEAR TERM AND ANY FAILURE TO
OBTAIN SUCH FINANCING WILL HAVE AN ADVERSE EFFECT ON OUR BUSINESS
We expect that additional financing will be needed to fund our product
commercialization plans. If our operational plans do not progress as
anticipated, our ability to attract additional financing could be impaired. We
cannot be certain that we will be able to obtain any additional financing. If
further financing is not obtained, this will have a material, adverse effect on
our business.
THE BASIS SYSTEM MAY NOT GAIN MARKET ACCEPTANCE
The commercial success of the Basis System will depend on its
acceptance by cardiac surgeons and other medical specialists. Acceptance will
depend on clinical validation results and the following conclusions by these
medical professionals:
* that the Basis System is accurate, reliable and effective, and
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* that it offers enhanced functionality relative to current
cardiac output monitoring technologies.
We cannot be certain that our product will provide clinical benefits
considered superior by these professionals. Nor can we be certain that a
sufficient number of professionals will use the Basis System for commercial
success to be achieved. There may be greater reluctance to accept this product
for two reasons. The first reason is that the Basis System uses a different
method of clinical assessment than do products that use well-established
technologies. The second reason is that it is an improved version of our product
that failed to achieve commercial success in the early 1990's. Substantial
efforts may need to be focused on educating the market about our technologically
different approach and the improvements in the Basis System over our prior
cardiac output monitoring systems. Failure of the Basis System to achieve market
acceptance would have a material, adverse effect on our business.
WE LACK MANUFACTURING EXPERIENCE AND MAY NOT BE ABLE TO MANUFACTURE COMMERCIAL
QUANTITIES OF THE BASIS SYSTEM
We currently plan to manufacture the Basis System internally. However,
we have limited manufacturing experience and could encounter difficulties in
scaling up production. These problems may include, among other things:
* estimating optimal product volume requirements and production
yields,
* controlling and anticipating product costs,
* managing quality control and component supply, and
* dealing with shortages of qualified personnel.
We cannot be certain that manufacturing difficulties will not occur
that could have a material, adverse effect on our business.
WE LACK MARKETING EXPERIENCE AND MAY NOT BE ABLE TO EFFECTIVELY SELL THE BASIS
SYSTEM
Currently, none of our personnel have experience in marketing the Basis
System, and we do not have any established sales capabilities. We cannot be
certain that our marketing efforts will result in commercial sales. Nor can we
be sure that we will be able to hire and develop an effective sales force and
distribution network without incurring substantial delays or costs, or at all.
Failure to develop an effective direct sales organization or an effective
distribution network would have a material, adverse effect on our business.
WE FACE SIGNIFICANT COMPETITION FROM WELL ESTABLISHED COMPETITORS AND
TECHNOLOGIES AND MAY BE UNABLE TO SELL OUR PRODUCTS AT PROFITABLE LEVELS AS A
RESULT
Competition in the market for cardiac output monitoring is intense.
Edwards Lifesciences Corporation, Johnson and Johnson, and Abbott Critical Care
currently dominate the cardiac output monitoring market. These companies make
and sell products that measure cardiac output by the widely used thermal
dilution method. Although we believe that our Basis System represents
significant improvements over products currently in the marketplace, we must be
able to effectively demonstrate the beneficial features of the Basis System and
maintain competitive pricing. Competition in our market may force us to lower
our prices and this could adversely impact our profits. Many of the companies
that we compete with have more resources than we do and have well-established
operations. These competitors also have more research and development,
manufacturing, marketing, and sales capabilities than we do. To effectively
compete with them we will need to:
6
<PAGE>
* demonstrate the advantages of the Basis System,
* protect the patents and proprietary rights associated with the
Basis System,
* become and remain a technology leader, and
* generate sales.
We cannot be certain that we will be able to successfully compete
against our current or future competitors.
THE BASIS SYSTEM HAS ONLY A LIMITED HISTORY OF USE IN HUMANS AND MAY NOT PERFORM
AT ACCEPTABLE LEVELS IN CLINICAL USE
Although we have completed extensive research and conducted lab and
animal testing on the Basis System, we have conducted only limited human
testing. While we believe the results of these activities support good
performance of our product, we cannot be certain that these activities will
identify all of the technical issues or potential problems that may occur when
using the Basis System in humans with different anatomical structures and
varying disease characteristics. We are conducting human evaluations, and cannot
be certain that we will get good results, or that modifications will not be
needed. If modifications are needed, we cannot be certain that all modifications
can be timely and successfully developed. If the Basis System to fails to
achieve acceptable results in future evaluations, or if modifications are not
timely or successfully developed, this could lead to delays in the introduction
and market acceptance of the Basis System. A delay in the market introduction of
the Basis System would have an adverse impact on our business.
WE MUST CONTINUE TO KEEP PACE WITH TECHNOLOGY IN OUR INDUSTRY OR OUR BUSINESS
WILL SUFFER
Even if the Basis System is successfully developed and accepted, it may
become outdated by new technology and innovations or changes in the medical
marketplace. Our success will depend in part on being able to respond quickly to
medical and technological changes and to develop and introduce new versions of
the Basis System in response to competitive innovations. New product
introductions will cause us to incur additional research and development costs
and may require new regulatory approvals. We cannot be certain that we will
successfully identify new market opportunities and develop new products. Nor can
we be certain that these new products will receive regulatory approvals or be
accepted by the marketplace.
OUR CUSTOMERS MAY NOT BE ABLE TO ACHIEVE ADEQUATE REIMBURSEMENT FOR USING OUR
PRODUCTS, WHICH WOULD CAUSE OUR PRICING AND BUSINESS TO SUFFER
The Basis System will generally be purchased by hospitals that will
seek reimbursement from various public and private third party payers, such as
Medicare and private insurance companies, for the health care services provided
to patients. We cannot be certain that these third party payers will consider
use of the Basis System cost-effective. If the Basis System is not considered
cost-effective and not approved for reimbursement, this will adversely affect
the future of the Basis System and our business. Even if the third party payers
approve the Basis System for reimbursement, we cannot be sure that the amount of
approved reimbursement will be high enough for us to generate profits from
selling the Basis System. Furthermore, the amount of reimbursement for treatment
for various cardiac diseases could decrease in the future. This could require us
to lower our selling price of the Basis System. Failure by hospitals and other
users of our products to receive sufficient reimbursement for use of the Basis
System could have an adverse impact on our business.
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WE MAY NOT BE ABLE TO ADEQUATELY ENFORCE OR PROTECT OUR INTELLECTUAL PROPERTY
RIGHTS OR TO PROTECT OURSELVES AGAINST INFRINGEMENT CLAIMS OF OTHERS
Our success depends in part on our ability to obtain and maintain
patent protection for our products, preserve our trade secrets, and operate
without infringing the proprietary rights of other parties. We have U.S. and
foreign patents and pending patent applications related to many aspects of the
Basis System. The validity and breadth of claims covered in medical technology
patents involve complex legal and factual questions and, therefore, may be
highly uncertain. Specifically, we cannot be certain that:
* any of our current patents will be maintained,
* patents under pending applications or any future patent
applications will be issued,
* the scope of any patent protection will exclude competitors or
provide competitive advantages to us,
* any of our patents will be held valid if subsequently
challenged,
* others will not claim rights in or ownership of the patents
and other proprietary rights held by us, or
* the Basis System or other products and processes will not
infringe, or be alleged to infringe, the proprietary rights of
others.
If we are found to have infringed on the rights of a third party, we
may be unable to market our products without a license from such third party. We
cannot be certain that we would be able to obtain such a license on satisfactory
terms, or at all. Furthermore, we cannot be certain that others have not
developed, or will not develop, similar products or manufacturing processes. Nor
can we be certain that others will not design around our patents. In addition,
whether or not additional patents are issued to us, others may hold or receive
patents that contain claims having a scope that covers products that we
subsequently develop.
We also rely on unpatented trade secrets to protect our proprietary
technology, and we cannot be certain that:
* others will not independently develop or otherwise acquire
substantially equivalent technologies,
* others will not gain access to our proprietary technology or
disclose such technology, or
* we can ultimately protect meaningful rights to such unpatented
proprietary technology.
There has been substantial litigation regarding patent and other
intellectual property rights in the medical device industry. Litigation could
result in substantial cost to and diversion of effort by our company but may be
necessary to:
* enforce patents issued to us,
* protect trade secrets or know-how owned by our company,
* defend us against claimed infringement of the rights of
others, or
* to determine the ownership, scope or validity of the
proprietary rights of our company and others.
An adverse determination in litigation could force us to incur
significant liabilities to third parties and require us to seek licenses from
third parties. It could also prevent us from manufacturing, selling or using our
products. The occurrence of any of these situations could have a material
adverse effect on our business.
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WE ARE SUBJECT TO EXTENSIVE AND RIGOROUS GOVERNMENTAL REGULATION, WHICH COULD
ADVERSELY IMPACT OUR ABILITY TO SELL PRODUCTS
Medical device companies are subject to extensive and rigorous
regulation by the FDA in the United States and by comparable agencies in foreign
countries. The FDA regulates all aspects of a medical device including its:
* introduction,
* labeling and manufacturing,
* sale and distribution,
* marketing, advertising, and promotion, and
* the record keeping procedures for such device.
We believe that the 510(k) marketing clearance received from the FDA in
1991 for our trans-aortic system is valid for the Basis System. However, the FDA
can withdraw that marketing clearance either temporarily or permanently. An FDA
withdrawal could occur due to failure to comply with regulatory standards or the
occurrence of unforeseen problems with the Basis System. The FDA has the power
to limit or prevent the manufacture or distribution of the Basis System. The FDA
could also require a recall of the Basis System. FDA regulations depend heavily
on administrative interpretation, and we cannot be certain that future
interpretation made by the FDA or other regulatory bodies, with possible
retroactive effect, will not adversely affect us. The FDA and various agencies
inspect our business and facilities from time to time. The inspections are to
determine whether we are in compliance with regulations relating to medical
device manufacturing. These regulations govern manufacturing, testing, quality
control and product labeling practices. A determination that we are in material
violation of such regulations could lead to the imposition of civil penalties
such as:
* fines,
* product recalls
* product seizures, or,
* in extreme cases, criminal sanctions.
Furthermore, we cannot be certain that the government regulations will
not change, and thereby prevent us from temporarily or permanently marketing the
Basis System. The withdrawal by the FDA of its marketing approval for the Basis
System, the recall of the Basis System or similar regulatory action would have
an adverse effect on our business.
As part of our strategy, we expect to seek to sell our products in
international markets. As a result, our products will be subject to regulations
that vary from country to country. The process of receiving foreign regulatory
approvals in certain countries can be time consuming and expensive. We cannot be
certain that we will be able to receive foreign regulatory approvals or
clearances on a timely basis or at all. Delays or failure to receive such
approvals or clearances, or failure to comply with existing or future regulatory
requirements, could have an adverse effect on our financial condition and
operating results.
HEALTH CARE REFORM INITIATIVES MAY IMPACT THE MANNER IN WHICH WE CONDUCT OUR
BUSINESS
The sales and profits of medical device companies may be affected by
the efforts of government and third-party payers to contain or reduce the costs
of health care. In the United States there have been, and may continue to be,
many federal and state proposals to control health care costs. These proposals
are intended to control public and private spending on health care, and provide
universal public access to the health care system. If enacted, these proposals
may result in a substantial restructuring of the health
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care system. Significant changes in the nation's health care system may have a
substantial impact on the manner in which we conduct our business. Similarly,
the marketing and sale of our products in foreign countries could be adversely
affected by health care reform in such countries. Any such changes could
adversely affect our business.
WE MAY BE UNABLE TO RECRUIT NECESSARY PERSONNEL OR RETAIN KEY OFFICERS, WHICH
WOULD ADVERSELY AFFECT OUR BUSINESS
We need to expand our personnel in all functions in order to support
development and commercialization of the Basis System. Our success depends on
our ability to attract and retain capable technical staff as well as sales and
marketing personnel in the future. Our inability to hire personnel as needed may
result in an adverse impact on our business. In addition, we currently depend on
the services of Andrew M. Weiss, our President and Chief Executive Officer. The
loss of Mr. Weiss could adversely affect our business.
WE INTEND TO SELL PRODUCTS INTERNATIONALLY, WHICH WILL EXPOSE US TO CURRENCY
FLUCTUATIONS AND OTHER RISKS
Our plan to distribute the Basis System in international markets
involves certain risks that may prohibit or severely restrict foreign sales.
These risks include:
* tariffs, quotas, and taxes that may be imposed by foreign
governments on the sales of our product,
* political and economic instability of foreign countries,
* restrictions on import or export of technology, and
* limited patent and trademark protection.
Currency fluctuations could also cause the Basis System to become less
affordable or less price competitive in international markets. Any of these
factors would adversely impact our ability to sell the Basis System
internationally, and could have a material, adverse impact on our business.
WE DEPEND ON KEY SUPPLIERS AND ANY CHANGE IN THESE RELATIONSHIPS COULD ADVERSELY
AFFECT US
We have many suppliers for most of the components used in the Basis
System. However, several components are currently available from only a few
vendors and some are nearing the end of their product life cycle and
availability. If we are not able to obtain components on a timely basis or
identify, validate and purchase alternative components, this will have an
adverse impact on our ability to fill orders from customers and in turn could
adversely effect our business.
WE ARE EXPOSED TO PRODUCT LIABILITY CLAIMS AND FACE FINANCIAL RISK AS A RESULT
The medical device industry is subject to substantial litigation. We
could face product liability claims if the Basis System results or is assumed to
have resulted in adverse effects to a patient. Although we have product
liability insurance, we cannot be certain that the coverage limits of our
insurance policies will be sufficient. Nor can we assume that product liability
insurance will be available to us in the future. A product liability claim or
other claim related to uninsured liabilities or in excess of insured liabilities
could have a material, adverse effect on our business.
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POSSIBLE ISSUANCES OF PREFERRED SHARES AND ANTI-TAKEOVER PROVISIONS COULD AFFECT
THE PRICE OF OUR COMMON STOCK
Under our Articles of Incorporation our board of directors can issue up
to 5,000,000 undesignated shares of capital stock. The board can fix the rights,
preferences, privileges and restrictions, including voting rights, of such
undesignated shares without any further vote or action by our shareholders. The
rights of the holders of common stock will be subject to, and may be adversely
affected by, the rights of the holders of any undesignated shares that may be
created and issued in the future. The issuance of undesignated shares could also
have the effect of delaying, deferring or preventing a change in control of our
company.
In addition, we are subject to certain anti-takeover provisions under
Minnesota corporate law. The board's ability to issue undesignated shares and
these anti-takeover provisions could discourage other parties from attempting to
acquire us. In turn, this could deprive our shareholders of opportunities to
sell their shares of common stock at prices higher than prevailing market prices
and may also depress the market price of our common stock.
WE ARE REQUIRED TO INDEMNIFY CERTAIN PERSONS AND FACE FINANCIAL RISK AS A RESULT
Our Articles of Incorporation provide that we will indemnify our
directors and officers to the maximum extent permitted by Minnesota law.
Although we maintain insurance on behalf of these persons, we may be required to
indemnify them against liability not covered by or in excess of this insurance.
This could result in substantial expenditures by us or prevent any recovery from
such persons for losses incurred by us as a result of their actions.
WE DO NOT INTEND TO PAY DIVIDENDS
We have never paid any cash dividends on our common stock and we do not
plan to pay cash dividends in the foreseeable future.
PLAN OF DISTRIBUTION
We are registering the resale of 1,102,500 shares of our common stock
on behalf of certain selling shareholders. All of the shares were issued by us
in connection with private placement financings or are issuable upon exercise of
outstanding warrants. We will not receive any proceeds from this offering.
The selling shareholders named in the table below or pledgees, donees,
transferees or other successors-in-interest selling shares received from a named
selling shareholder as a gift, partnership distribution or other
non-sale-related transfer after the date of this prospectus may sell the shares
from time to time. All of such persons are "selling shareholders" as that term
is used in this prospectus. The selling shareholders will act independently of
Applied Biometrics in making decisions with respect to the timing, manner and
size of each sale.
Sales by the selling shareholders may be made on one or more exchanges
or in the over-the-counter market or otherwise, at prices and at terms then
prevailing or at prices related to the then current market price, or in
negotiated transactions. The selling shareholders may effect such transactions
by selling the shares to or through broker-dealers. The shares may be sold by
one or more of, or a combination of, the following:
* a block trade in which the broker-dealer so engaged will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction,
11
<PAGE>
* purchases by a broker-dealer as principal and resale by such
broker-dealer for its account pursuant to this prospectus,
* an exchange distribution in accordance with the rules of such
exchange,
* ordinary brokerage transactions and transactions in which the
broker solicits purchasers, and
* in privately negotiated transactions.
In addition, any securities covered by this prospectus that qualify for
sale pursuant to Rule 144 promulgated under the Securities Act may be sold under
Rule 144 rather than pursuant to this prospectus.
To the extent required, this prospectus may be amended or supplemented
from time to time in the manner discussed below to describe a specific plan of
distribution. In effecting sales, broker-dealers engaged by the selling
shareholders may arrange for other broker-dealers to participate in the resales.
The selling shareholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers may engage in short sales of the shares in the
course of hedging the positions they assume with selling shareholders. The
selling shareholders also may sell shares short and redeliver the shares to
close out such short positions. The selling shareholders may enter into option
or other transactions with broker-dealers that require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer such shares pursuant to this prospectus. The selling shareholders also
may loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
shares so loaned, or on a default the broker-dealer may sell the pledged shares
pursuant to this prospectus.
Broker-dealers or agents may receive compensation in the form of
commissions, discounts or concessions from selling shareholders. Broker-dealers
or agents may also receive compensation from the purchasers of the shares for
whom they act as agents or to whom they sell as principals, or both.
Compensation as to a particular broker-dealer might be in excess of customary
commissions and will be in amounts to be negotiated in connection with the sale.
Broker-dealers or agents and any other participating broker-dealers or the
selling shareholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act in connection with sales of the shares.
Accordingly, any such commission, discount or concession received by them and
any profit on the resale of the shares purchased by them may be deemed to be
underwriting discounts or commissions under the Securities Act. The selling
shareholders have advised Applied Biometrics that they have not entered into any
agreements, understandings or arrangements with any underwriters or
broker-dealers regarding the sale of their securities. There is no underwriter
or coordinating broker acting in connection with the proposed sale of shares by
selling shareholders.
The shares will be sold only through registered or licensed brokers or
dealers if required under applicable state securities laws. In addition, in
certain states the shares may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the registration
or qualification requirement is available and is complied with.
Under applicable rules and regulations under the Securities Exchange
Act of 1934, as amended, any person engaged in the distribution of the shares
may not simultaneously engage in market making activities with respect to our
common stock for a period of two business days prior to the commencement of such
distribution. In addition, each selling shareholder will be subject to
applicable provisions of the Exchange Act and the associated rules and
regulations under the Exchange Act, including Regulation M, which provisions may
limit the timing of purchases and sales of shares of our common stock by the
selling shareholders. Because selling shareholders may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, the
selling shareholders will be subject to the prospectus delivery requirements of
the Securities Act. We will make copies of this prospectus available to the
12
<PAGE>
selling shareholders and have informed them of the need for delivery of copies
of this prospectus to purchasers at or prior to the time of any sale of the
shares.
We will file a supplement to this prospectus, if required, pursuant to
Rule 424(b) under the Securities Act upon being notified by a selling
shareholder that any material arrangement has been entered into with a
broker-dealer for the sale of shares through a block trade, special offering,
exchange distribution or secondary distribution or a purchase by a broker or
dealer. Such supplement will disclose:
* the name of each such selling shareholder and of the
participating broker-dealer(s),
* the number of shares involved,
* the price at which such shares were sold,
* the commissions paid or discounts or concessions allowed to
such broker-dealer(s), where applicable,
* that such broker-dealer(s) did not conduct any investigation
to verify the information set out or incorporated by reference
in this prospectus, and
* other facts material to the transaction.
In addition, upon being notified by a selling shareholder that a donee,
pledgee, transferee or other successor-in-interest intends to sell more than 500
shares, we will file a supplement to this prospectus.
We will bear all costs, expenses and fees in connection with the
registration of the shares. The selling shareholders will bear all commissions
and discounts, if any, attributable to the sales of the shares. The selling
shareholders may agree to indemnify any broker-dealer or agent that participates
in transactions involving sales of the shares against certain liabilities,
including liabilities arising under the Securities Act.
13
<PAGE>
SELLING SHAREHOLDERS
The following table sets forth information regarding the shares offered
and the beneficial ownership of common stock by the selling shareholders.
Information is also provided with respect to any position, office or material
relationship that a selling shareholder has had with Applied Biometrics within
the past three years. Except as described in the footnotes below, the selling
shareholders possess sole voting and investment power with respect to the shares
shown. The shares offered by this prospectus may be offered from time to time by
the selling shareholders named below.
<TABLE>
<CAPTION>
SHARES BENEFICIALLY OWNED
SHARES NUMBER OF AFTER COMPLETION OF THE
BENEFICIALLY SHARES OFFERING(1),(2)
OWNED PRIOR TO BEING
NAME OF SELLING SHAREHOLDER THE OFFERING(1) OFFERED NUMBER % OF CLASS(3)
<S> <C> <C> <C> <C>
Miller, Johnson & Kuehn, Inc.(4)
5500 Wayzata Boulevard, Suite 800
Minneapolis, MN 55416.............................. 25,575(5) 8,825 16,750(6) *
Miller, Johnson & Kuehn, Inc.(4) Investment Pool
5500 Wayzata Boulevard, Suite 800
Minneapolis, MN 55416.............................. 5,000(7) 5,000 -- *
David B. Johnson(8)
c/o Miller, Johnson & Kuehn, Inc.
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 618,320(9) 10,369 454,733(10) 7.7%
</TABLE>
- ------------------------------
* Less Than 1%
(1) Based upon questionnaires received from the selling shareholder, or their
representative, in connection with the preparation of a registration
statement on Form S-3, of which this prospectus is a part.
(2) This assumes all shares being offered and registered hereunder are sold,
although the selling shareholders are not required to sell any shares.
(3) Based upon 5,881,504 shares of common stock outstanding as of April 30,
2000.
(4) Miller, Johnson & Kuehn, Incorporated ("MJK") acts as the principal market
maker for our common stock and we maintain an investment banking
relationship with the firm. During 1999 and 2000, we engaged MJK as our
agent in connection with three private placements totaling 1,340,000
shares, and 525,000 warrants to purchase shares, of common stock. In
consideration of MJK's services, we paid MJK selling commissions of
$292,875, equal to 10% of the aggregate price of the securities sold by MJK
in the private placements, and issued MJK warrants to purchase 93,250
shares of common stock. We also reimbursed MJK for certain expenses and its
legal fees in connection with the placements. From time to time we may
enter into similar arrangements with MJK regarding private placements,
securities offerings or other investment banking activities.
(5) Amount includes warrants to purchase 25,575 shares that are exercisable
within sixty days.
(6) Amount includes warrants to purchase 16,750 shares that are exercisable
within sixty days.
(7) Amount includes warrants to purchase 5,000 shares that are exercisable
within sixty days.
(8) David B. Johnson is a principal shareholder in the firm of Miller, Johnson
& Kuehn, Incorporated. Subsequent to the closing of the private placements
discussed above in Footnote No. 4, MJK transferred 19,469 of the warrants
it received in the private placements to Mr. Johnson.
(9) Amount includes 294,950 shares beneficially owned by Mr. Johnson's wife,
250 shares beneficially owned by his son, the shares owned by the David B.
Johnson Family Foundation, and warrants to purchase 19,469 shares that are
exercisable within sixty days. Mr. Johnson has sole voting and dispositive
power with respect to 141,102 shares and shares voting and dispositive
power with respect to 477,218 shares.
(10) Amount includes warrants to purchase 9,100 shares that are exercisable
within sixty days.
14
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
David B. Johnson(8) Family Foundation
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 182,018(11) 153,218 28,800 *
Paul R. Kuehn(12)
c/o Miller, Johnson & Kuehn, Inc.
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 94,469(13) 10,369 84,100(14) 1.4%
Eldon C. Miller(15)
c/o Miller, Johnson & Kuehn, Inc.
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 80,206(16) 3,456 76,750(17) 1.3%
Stanley D. Rahm(18)
c/o Miller, Johnson & Kuehn, Inc.
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 81,556(19) 3,456 78,100(20) 1.3%
Joseph D. Leach(21)
c/o Miller, Johnson & Kuehn, Inc.
5500 Wayzata Blvd., Suite 800
Minneapolis, MN 55416.............................. 11,025(22) 11,025 -- *
Aaron Boxer Revocable Trust
Aaron Boxer Trustee u/a dtd 8/1/89
7287 Sidonia Court
Boca Raton, FL 33433-6932.......................... 609,333(23) 146,000 463,333 7.8%
</TABLE>
- -----------------------------
* Less Than 1%
(11) Amount includes warrants to purchase 76,609 shares that are exercisable
within sixty days.
(12) Paul R. Kuehn is a principal shareholder in the firm of Miller, Johnson &
Kuehn, Incorporated. Subsequent to the closing of the private placements
discussed above in Footnote No. 4, MJK transferred 19,469 of the warrants
it received in the private placements to Mr. Kuehn.
(13) Amount includes warrants to purchase 19,469 shares that are exercisable
within sixty days.
(14) Amount includes warrants to purchase 9,100 shares that are exercisable
within sixty days.
(15) Eldon C. Miller is a principal shareholder in the firm of Miller, Johnson &
Kuehn, Incorporated. Subsequent to the closing of the private placements
discussed above in Footnote No. 4, MJK transferred 5,206 of the warrants it
received in the private placements to Mr. Miller.
(16) Amount includes warrants to purchase 5,206 shares that are exercisable
within sixty days.
(17) Amount includes warrants to purchase 1,750 shares that are exercisable
within sixty days.
(18) Stanley D. Rahm is a principal shareholder in the firm of Miller, Johnson &
Kuehn, Incorporated. Subsequent to the closing of the private placements
discussed above in Footnote No. 4, MJK transferred 7,506 of the warrants it
received in those private placements to Mr. Rahm.
(19) Amount includes warrants to purchase 7,506 shares that are exercisable
within sixty days.
(20) Amount includes warrants to purchase 4,050 shares that are exercisable
within sixty days.
(21) Joseph D. Leach is an associate in the firm of Miller, Johnson & Kuehn,
Incorporated. Subsequent to the closing of the private placements discussed
above in Footnote No. 4, MJK transferred 11,025 of the warrants it received
in those private placements to Mr. Leach.
(22) Amount includes warrants to purchase 11,025 shares that are exercisable
within sixty days.
(23) Amount includes warrants to purchase 73,000 shares that are exercisable
within sixty days.
15
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Andrew M. Weiss(24)
4515 Moorland Avenue
Edina, MN 55424.................................... 347,668(25) 2,000 345,668(26) 5.6%
Camille M. Meyer(27)
615 Fairview Avenue S.
St. Paul, MN 55116................................. 57,420(28) 2,000 55,420(29) *
Demetre M. Nicoloff(30)
1492 Hunter Rd.
Wayzata, MN 55391.................................. 112,500(31) 10,000 102,500(32) 1.7%
Bruce A. Machmeier(33) & Andrea M. Machmeier
Jt/Ten
5500 Brookview Avenue
Edina, MN 55424.................................... 6,000(34) 6,000 -- *
Pyramid Trading Ltd Partnership
440 South LaSalle, Suite 700
Chicago, IL 60605.................................. 215,400(35) 215,400 -- *
Sol Menche & Rochelle Menche Jt/Ten
241 Viola Rd.
Monsey, NY 10952................................... 153,846(36) 153,846 -- *
Jeffrey D. Rahm(37) & Susan D. Rahm Jt/Ten
16810 45th Avenue N.
Plymouth, MN 55446................................. 25,385(38) 15,384 10,001 *
Kyle Mansfield
Mansfield & Foley
1108 Nicollet Mall, Suite 200
Minneapolis, MN 55403.............................. 15,384(38) 15,384 -- *
</TABLE>
- ---------------------------
* Less Than 1%
(24) Andrew M. Weiss is the President, Chief Executive Officer and a director of
Applied Biometrics.
(25) Amount includes options to purchase 343,168 shares, and warrants to
purchase 1,000 shares, that are exercisable within sixty days.
(26) Amount includes options to purchase 343,168 shares that are exercisable
within sixty days.
(27) Camille M. Meyer is the Vice President, Finance, Chief Financial Officer
and Secretary of Applied Biometrics.
(28) Amount includes options to purchase 54,420 shares, and warrants to purchase
1,000 shares, that are exercisable within sixty days.
(29) Amount includes options to purchase 54,420 shares that are exercisable
within sixty days.
(30) Dr. Demetre M. Nicoloff is a director of Applied Biometrics.
(31) Amount includes options to purchase 40,000 shares, and warrants to purchase
5,000 shares, that are exercisable within sixty days.
(32) Amount includes options purchase 40,000 shares that are exercisable within
sixty days.
(33) Bruce A. Machmeier, Esq. is a partner with the firm of Oppenheimer Wolff &
Donnelly LLP, Applied Biometrics' legal counsel.
(34) Amount includes warrants to purchase 3,000 shares that are exercisable
within sixty days.
(35) Amount includes warrants to purchase 107,700 shares that are exercisable
within sixty days.
(36) Amount includes warrants to purchase 76,923 shares that are exercisable
within sixty days.
(37) Jeffrey D. Rahm is an associate in the firm of Miller, Johnson and Kuehn,
Incorporated.
(38) Amount includes warrants to purchase 7,692 shares that are exercisable
within sixty days.
16
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
John A. Altmann
12486 65th Avenue N.
Chippewa Falls, WI 54729........................... 20,384(38) 15,384 5,000 *
John J. Altmann Sr.
701 West Haven Road
Chippewa Falls, WI 54729........................... 15,384(38) 15,384 -- *
Paul Forsberg
932 Nine Mile Cove
Hokins, MN 55343................................... 300,000(39) 300,000 -- *
---------
1,102,500
=========
</TABLE>
- ----------------------------
* Less than 1%
(39) Amount includes warrants to purchase 150,000 shares that are exercisable
within sixty days.
LEGAL MATTERS
Certain legal matters regarding the validity of the shares of common
stock offered hereby will be passed upon by Oppenheimer Wolff & Donnelly LLP. As
noted above, Bruce A. Machmeier is one of the selling shareholders and a partner
with the firm of Oppenheimer Wolff & Donnelly LLP.
EXPERTS
Our financial statements, which are included in our Annual Report on Form 10-K
for the year ended December 31, 1999, and incorporated by reference in this
prospectus and the related registration statement have been audited by Ernst &
Young LLP, independent auditors, as of and for the year ended December 31, 1999,
and by PricewaterhouseCoopers LLP, independent accountants, as of and for the
year ended December 31, 1998. Our financial statements are incorporated by
reference in reliance on the reports of Ernst & Young LLP and
PricewaterhouseCoopers LLP, given on their authority as experts in accounting
and auditing. The report of Ernst & Young LLP, as of and for the year ended
December 31, 1999, contains an explanatory paragraph describing conditions that
raise substantial doubt about our ability to continue as a going concern as
described in Note 2 to the financial statements included in our Annual Report on
Form 10-K. Audited financial statements included in subsequently filed documents
will be incorporated by reference in this prospectus and the related
registration statement in reliance upon the reports of Ernst & Young LLP
pertaining to such financial statements (to the extent covered by consents filed
with the Securities and Exchange Commission), given on their authority as
experts in accounting and auditing.
17
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The table below sets forth the estimated expenses (except the SEC
registration fee, which is an actual expense) in connection with the offer and
sale of the shares of common stock covered by this Registration Statement. None
of these expenses will be borne by the selling shareholders.
Registration fee................................ $ 874
Blue sky fees................................... 2,000
Legal fees and expenses......................... 5,000
Accounting fees and expenses.................... 6,000
Miscellaneous................................... 1,000
---------
Total.................................. $ 14,874
=========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Minnesota Statutes Section 302A.521 provides that a Minnesota business
corporation must indemnify any director, officer, employee or agent of the
corporation made or threatened to be made a party to a proceeding, by reason of
the former or present official capacity (as defined) of the person, against
judgments, penalties, fines, settlements and reasonable expenses incurred by the
person in connection with the proceeding if certain statutory standards are met.
"Proceeding" means a threatened, pending or completed civil, criminal,
administrative, arbitration or investigative proceeding, including one by or in
the right of the corporation. Section 302A.521 contains detailed terms regarding
such right of indemnification and reference is made thereto for a complete
statement of such indemnification rights. The Company's Restated Articles of
Incorporation require the Company to provide indemnification to the fullest
extent of the Minnesota indemnification statute.
Article VII of the Company's Bylaws provides that each director,
officer, employee or agent, past or present, of the Company, and each person who
serves or may have served at the request of the Company as a director, officer
employee or agent of another corporation or employee benefit plan, and their
respective heirs, administrators and executors, shall be indemnified by the
Company in accordance with, and to the fullest extent permissible by, applicable
state law.
The Company maintains directors' and officers' liability insurance,
including a reimbursement policy in favor of the Company.
Pursuant to registration rights agreements entered into between the
Company and the selling shareholders in connection with the private placements
of the shares covered by this Registration Statement, the selling shareholders
are required to indemnify the Company's officers and directors against certain
civil liabilities that they may incur under the Securities Act as a result of
information provided by the selling shareholders for use in connection with this
Registration Statement and the related prospectus.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
Exhibit Description of Exhibit
- ------- ----------------------
4.1 Restated Articles of Incorporation of Applied Biometrics, as
amended (incorporated by reference to Exhibit 3.1 to Applied
Biometrics' Annual Report on Form 10-K for the year ended December
31, 1999 (File No. 0-22146)).
4.2 Bylaws of Applied Biometrics (incorporated by reference to Exhibit
3.2 to Applied Biometrics' Registration Statement on Form SB-2
(File No. 33-63754C)).
4.3 Form of Common Stock Certificate of Applied Biometrics
(incorporated by reference to Exhibit 4.1 to Applied Biometrics'
Registration Statement on Form SB-2 (File No. 33-63754C)).
5.1 Opinion and Consent of Oppenheimer Wolff & Donnelly LLP (filed
herewith electronically).
23.1 Consent of Oppenheimer Wolff & Donnelly LLP (included in Exhibit
5.1).
23.2 Consent of Ernst & Young LLP (filed herewith electronically).
23.3 Consent of PricewaterhouseCoopers LLP (filed herewith
electronically).
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 of 1933;
(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 end 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% change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement;
II-2
<PAGE>
(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 (a)(1)(i) and
(a)(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 by the 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Burnsville, State of Minnesota.
Dated: May 5, 2000 APPLIED BIOMETRICS, INC.
By: /s/ Andrew M. Weiss
-------------------------------------
Andrew M. Weiss
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Andrew M. Weiss and Camille M. Meyer as his or
her true and lawful attorney-in-fact and agent, with full powers 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 or all amendments (including post-effective
amendments) to this Registration Statement or any registration statement filed
pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or his
or her substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
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.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Andrew M. Weiss President and Chief Executive May 5, 2000
- -------------------------------- Officer (Principal Executive
Andrew M. Weiss Officer) and Director
/s/ Camille M. Meyer Vice President of Finance and Chief May 5, 2000
- -------------------------------- Financial Officer (Principal
Camille M. Meyer Financial and Accounting Officer)
/s/ Norman Dann Director May 5, 2000
- --------------------------------
Norman Dann
/s/ Jeffrey Green Director May 5, 2000
- --------------------------------
Jeffrey Green
/s/ Demetre Nicoloff, M.D., PhD. Director May 5, 2000
- --------------------------------
Demetre Nicoloff, M.D., PhD.
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Item No. Description Method of Filing
- -------- ----------- ----------------
<S> <C> <C>
4.1 Restated Articles of Incorporation of
Applied Biometrics, as amended............. Incorporated by reference to
Exhibit 3.1 to Applied Biometrics'
Annual Report on Form 10-K for the
year ended December 31, 1999 (File
No. 0-22146).
4.2 Bylaws of Applied Biometrics............... Incorporated by reference to
Exhibit 3.2 to Applied Biometrics'
Registration Statement on Form
SB-2 (File No. 33-63754C).
4.3 Form of Common Stock Certificate of
Applied Biometrics......................... Incorporated by reference to
Exhibit 4.1 to Applied Biometrics'
Registration Statement on Form
SB-2 (File No. 33-63754C).
5.1 Opinion and Consent of Oppenheimer
Wolff & Donnelly LLP....................... Filed herewith electronically.
23.1 Consent of Oppenheimer Wolff &
Donnelly LLP............................... Included in Exhibit 5.1.
23.2 Consent of Ernst & Young LLP............... Filed herewith electronically.
23.3 Consent of PricewaterhouseCoopers
LLP........................................ Filed herewith electronically.
</TABLE>
Exhibit 5.1
OPPENHEIMER Amsterdam New York
- ----------------------------------
OPPENHEIMER WOLFF & DONNELLY LLP Brussels Orange County
Chicago Paris
Plaza VII
45 South Seventh Street, Suite 3300 Geneva Saint Paul
Minneapolis, MN 55402-1609
Los Angeles Silicon Valley
612.607.7000
Fax 612.607.7100 Minneapolis Washington, D.C.
www.oppenheimer.com
May 5, 2000
VIA EDGAR
Applied Biometrics, Inc.
501 East Highway 13, Suite 108
Burnsville, MN 55337
RE: REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We are acting as counsel for Applied Biometrics, Inc., a Minnesota corporation
(the "Company"), in connection with the Company's registration of offers and
sales by certain of its shareholders of 1,102,500 shares of its common stock,
$.01 par value, pursuant to a Registration Statement on Form S-3 filed with the
Securities Exchange Commission on May 5, 2000. The shares covered by the
Registration Statement consist of shares that have been issued by the Company in
private placements and shares that are issuable upon the exercise of outstanding
warrants.
In acting as counsel for the Company and arriving at the opinions expressed
below, we have examined and relied upon originals or copies, certified or
otherwise identified to our satisfaction, of such records of the Company,
agreements and other instruments, certificates of officers and representatives
of the Company, certificates of public officials and other documents as we have
deemed necessary or appropriate as a basis for the opinions expressed herein.
In connection with our examination, we have assumed the genuiness of all
signatures, the authenticity of all documents tendered to us as originals, the
legal capacity of all natural persons and the conformity to original documents
of all documents submitted to us as certified or photostatic copies.
Based on the foregoing, it is our opinion that:
(1) The Company had the corporate authority to issue the shares
covered by the Registration Statement that are currently
outstanding and has the corporate authority to issue those
shares covered by the Registration Statement that are issuable
upon the exercise of outstanding warrants.
<PAGE>
(2) The outstanding shares being registered for resale by the
selling shareholders under the Registration Statement have
been duly authorized and are validly issued, fully paid and
nonassessable.
(3) The shares being registered for resale by the selling
shareholders under the Registration Statement which are
issuable upon the exercise of outstanding warrants have been
duly authorized and, when issued, delivered and paid for
according to the terms of the warrants, will be validly
issued, fully paid and nonassessable.
We express no opinion with respect to laws other than those of the State of
Minnesota and the federal laws of the United States of America, and we assume no
responsibility as to the applicability thereto, or the effect thereon, of the
laws of any other jurisdiction.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement, to its use as part of the Registration Statement, and to
the use of our name under the caption "Legal Matters" in the prospectus
constituting a part of the Registration Statement.
Very truly yours,
OPPENHEIMER WOLFF & DONNELLY LLP
/s/ Oppenheimer Wolff & Donnelly LLP
Exhibit 23.2
CONSENT OF ERNST & YOUNG LLP
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) and related Prospectus of Applied
Biometrics, Inc. for the registration of 1,102,500 shares of its common stock
and to the incorporation by reference therein of our report dated January 14,
2000, with respect to the financial statements of Applied Biometrics, Inc.
included in its Annual Report (Form 10-K) for the year ended December 31, 1999,
filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Minneapolis, Minnesota
May 3, 2000
Exhibit 23.3
CONSENT OF PRICEWATERHOUSECOOPERS LLP
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated March 18, 1999 relating to the
financial statements, which report is included in the Annual Report on Form 10-K
for the year ended December 31, 1999 of Applied Biometrics, Inc. We also consent
to the reference to us in this Registration Statement under the heading
"Experts."
/s/ PricewaterhouseCoopers LLP
Minneapolis, Minnesota
May 3, 2000
