<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 9, 2000
REGISTRATION NO. 333-94379
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
PRE-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------------------
BOSTON BIOMEDICA, INC.
(Exact Name of Registrant as Specified in Its Charter)
MASSACHUSETTS 04-2652826
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
375 WEST STREET
WEST BRIDGEWATER, MASSACHUSETTS 02379
(508) 580-1900
(Address, Including Zip Code, and Telephone Number, Including Area Code,
of Registrant's Principal Executive Offices)
-----------------------------------
RICHARD T. SCHUMACHER
BOSTON BIOMEDICA, INC.
375 WEST STREET
WEST BRIDGEWATER, MA 02379
(508) 580-1900
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
----------------------------------
COPIES TO:
STEVEN R. LONDON, ESQUIRE
BROWN, RUDNICK, FREED & GESMER
ONE FINANCIAL CENTER
BOSTON, MASSACHUSETTS 02111
TEL: (617) 856-8200
FAX: (617) 856-8201
----------------------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement.
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 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. [ ]
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>
PROSPECTUS (SUBJECT TO COMPLETION)
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE HAVE
FILED A REGISTRATION STATEMENT RELATING TO THE COMMON STOCK WITH THE UNITED
STATES SECURITIES AND EXCHANGE COMMISSION. WE MAY NOT SELL THE COMMON STOCK
UNTIL THE SEC DECLARES THAT THE REGISTRATION STATEMENT IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THE COMMON STOCK AND IT IS NOT SOLICITING AN
OFFER TO BUY THE COMMON STOCK IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
BOSTON BIOMEDICA, INC.
Up to 633,306 Shares of Common Stock
The shareholders named on page 13 may offer and sell up to 633,306 shares
of our common stock under this prospectus. The selling shareholders may offer
the common stock through public or private transactions, at prevailing market
prices, or at privately negotiated prices. We will not receive any proceeds from
the sale of our common stock by the selling shareholders. See "Plan of
Distribution."
Our common stock is traded on the Nasdaq National Market under the
symbol "BBII". On June 8, 2000, the last reported sale price of our common
stock was $4.3125 per share.
AN INVESTMENT IN THE COMMON STOCK OFFERED UNDER THIS PROSPECTUS INVOLVES A HIGH
DEGREE OF RISK. 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 DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is _______, 2000
<PAGE>
TABLE OF CONTENTS
SUMMARY.....................................................3
RISK FACTORS................................................4
WARNINGS REGARDING FORWARD-LOOKING STATEMENTS..............11
USE OF PROCEEDS............................................11
SELLING SHAREHOLDERS.......................................12
PLAN OF DISTRIBUTION.......................................13
INDEMNIFICATION FOR SECURITIES ACT LIABILITIES.............15
LEGAL MATTERS..............................................15
EXPERTS....................................................15
WHERE YOU CAN FIND MORE INFORMATION........................16
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SUMMARY
THIS SUMMARY BRIEFLY DESCRIBES OUR BUSINESS AND THE PROPOSED SALE OF SHARES OF
OUR COMMON STOCK.
ABOUT BOSTON BIOMEDICA
We are an infectious disease management company providing products and
services for the detection and treatment of infectious diseases such as AIDS,
lyme disease, and viral hepatitis. We currently operate four business units:
(1) BBI Diagnostics, a manufacturer and seller of quality control and
diagnostic products that increase the accuracy of diagnostic tests
that are performed IN VITRO, in a test tube or other laboratory
equipment;
(2) BBI Clinical Laboratories, a leading infectious disease testing
laboratory that specializes in nucleic acid based testing, tick
borne diseases and blood bank testing;
(3) BBI Biotech Research Laboratories, our research and development
arm, which provides research and development support for our other
business units as well as contract research and repository
services for other parties; and,
(4) BBI Source Scientific, a manufacturer and seller of laboratory and
medical instruments.
In addition, we are conducting research in pressure cycling technology
and drug discovery, with the goal of introducing new solutions for improving
blood plasma safety, specimen preparation in nucleic acid testing and treatment
of infectious diseases.
We were The Company was organized in Massachusetts in 1978 and
commenced significant operations in 1986. Our principal executive offices are
located at 375 West Street, West Bridgewater, Massachusetts 02379. Our telephone
number is (508) 580-1900.
THE OFFERING
The selling shareholders named on page 13 may offer and sell up to
633,306 shares of our common stock under this prospectus. We will not receive
any proceeds from those sales or transfers. The 633,306 shares of our common
stock that we are registering under this prospectus include shares that may be
issued to selling shareholders upon the conversion of outstanding stock purchase
warrants.
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RISK FACTORS
BEFORE YOU BUY SHARES OF OUR COMMON STOCK, YOU SHOULD BE AWARE THAT THERE ARE
VARIOUS RISKS ASSOCIATED WITH THAT PURCHASE, INCLUDING THOSE DESCRIBED BELOW.
YOU SHOULD CONSIDER CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF THE OTHER
INFORMATION IN THIS PROSPECTUS AND THE DOCUMENTS WE HAVE INCORPORATED BY
REFERENCE IN THE SECTION "WHERE YOU CAN FIND MORE INFORMATION" BEFORE YOU DECIDE
TO PURCHASE SHARES OF OUR COMMON STOCK.
IF WE ARE UNABLE TO OBTAIN A STEADY AND ADEQUATE SUPPLY OF RARE SPECIMENS OF
PLASMA AND SERUM, THEN WE MAY BE UNABLE TO PRODUCE SOME OF OUR PRODUCTS.
We manufacture our products from human plasma and serum, which we obtain
from nonprofit and commercial blood centers in the United States and from
similar sources throughout the world. Some of our products contain unique and
rare plasma specimens that we can only obtain from individuals during short
time-period windows. As a result, quantities of these specimens are limited, and
as we sell our products we must find replacement specimens that are equally
unique and rare. Competition to obtain these specimens may increase, which may
increase our costs and our ability to obtain these specimens. If we fail to
obtain a steady and adequate supply of these unique and rare specimens of plasma
and serum, then we may be unable to produce some of our products, which would
reduce our future revenues and operating results.
WE RELY ON PURCHASE ORDERS AND CONTRACTS FROM A SMALL NUMBER OF CUSTOMERS FOR A
LARGE PORTION OF OUR REVENUES; THE LOSS OF BUSINESS FROM THESE CUSTOMERS MAY
MATERIALLY REDUCE OUR REVENUES AND INCOME.
In 1999, our three largest customers together accounted for
approximately 16% of our revenues. Purchase orders account for the majority of
our orders; none of our customers have contractually committed to make future
product purchases from us. The loss of any major customer or a material
reduction in a major customer's purchases would materially reduce our revenues
and our operating results.
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GOVERNMENT REGULATION OF OUR PRODUCTS MAY DELAY OR PREVENT US FROM GETTING OUR
PRODUCTS TO MARKET.
The manufacture and distribution of medical devices, including products
that we manufacture that are intended for IN VITRO diagnostic use, are subject
to extensive government regulation in the United States and in other countries.
In the United States, the Food, Drug, and Cosmetic Act prohibits the
marketing of most IN VITRO diagnostic products until the Food and Drug
Administration either clears or approves the products through processes that are
time-consuming, expensive and uncertain. Some IN VITRO diagnostic products may
be exempt from FDA clearance or approval if they have undergone validation
studies. As of March 1, 2000, we believe that a total of 31 of our Accurun 1(R)
and Accurun(R) products are either exempt from, or have received, FDA clearance.
However, the FDA may not agree that some of these products are entitled to an
exemption and may adopt a different interpretation of the Food, Drug, and
Cosmetic Act or other laws it administers. In addition, we currently label some
of our other products "for research use only" because they are not intended for
use in diagnostic procedures, and we believe that they are therefore not subject
to FDA clearance or approval requirements. It is possible, however, that some
purchasers of these products may use them for diagnostic purposes rather than
for research, despite our labeling efforts. In any of these circumstances, the
FDA could allege that some or all of these products should have been cleared or
approved, or otherwise validated prior to marketing, and initiate enforcement
action against us. If the FDA initiates enforcement action against us, we will
likely expend a large amount of time, money, resources and management attention
to resolve the matter. In addition, if we cannot obtain or are delayed in
obtaining FDA clearances or approvals for our products, we may encounter delays
or be unable to ever sell those products to the end-user market.
We are also subject to strict FDA good manufacturing practice
regulations which govern testing, control and documentation practices, and other
post-marketing restrictions with respect to the manufacture of our medical
device products. Various regulatory authorities monitor our ongoing compliance
with good manufacturing practices and other applicable regulatory requirements
through periodic inspections. If we fail to comply with good manufacturing
practices or other regulatory requirements, we may not be able to obtain future
pre-market clearances or approvals, or the FDA or other regulatory agencies may
impose corrective action requirements, including total or partial suspension of
product distribution, injunctions, civil penalties, recall or seizure of
products, and criminal prosecution, each of which would lead to increased costs
and a drain on resources and could reduce our revenues and operating results.
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A variety of other statutes and regulations govern the manufacture,
process and sale of human therapeutic and diagnostic products in the U.S. and
elsewhere. These laws require controlled research, product testing and approval
of manufacturing facilities. To comply with these laws, we must provide, for
government review and approval, a submission containing manufacturing,
preclinical and clinical data in order to obtain marketing approval for our
products. Approval is based on whether we are able to establish the safety and
efficacy of our product for each use sought.
Our BBI BioSeq and Panacos Pharmaceuticals subsidiaries are currently
developing products that will require significant additional development,
preclinical and clinical testing and investment of substantial funds prior to
their commercialization. As described above, the process of obtaining required
approvals can be costly and time-consuming, and we may not be able to
successfully develop our future products, prove them to be safe and effective in
clinical trials or receive applicable regulatory approvals. If we are not able
to receive regulatory approvals for products developed by our BBI BioSeq and
Panacos Pharmaceuticals, Inc., subsidiaries, our future revenues and income will
be less than we have projected.
Because of the nature of our products, we are also subject to other
national, state and local laws and regulations, including those relating to the
use and disposal of biohazardous, radioactive and other hazardous substances and
wastes. Our failure to comply with these laws and regulations could result in
enforcement action or litigation against us, which could lead to increased costs
and a drain on resources.
BECAUSE WE CONDUCT OUR BUSINESS WORLDWIDE, FACTORS THAT AFFECT OUR INTERNATIONAL
SALES MAY MATERIALLY REDUCE OUR TOTAL REVENUES.
Our international sales accounted for approximately 13.7% of our total
revenues for the year ended December 31, 1999. Many factors may affect our
international sales, including:
- international regulatory requirements and policy changes,
including existing and future restrictions on importation of blood
and blood derivatives;
- political and economic changes and disruptions;
- difficulties in international accounts receivable collection;
- difficulties in managing international distributors or
representatives;
- governmental currency controls;
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- currency exchange rate fluctuations; and
- tariff regulations.
Unanticipated adverse changes in any or all of these factors could
result in reduced international sales, which may materially reduce our total
revenues and income.
IF WE ARE NOT ABLE TO REACT QUICKLY TO TECHNOLOGICAL CHANGE, WE MAY NOT BE ABLE
TO COMPETE EFFECTIVELY.
The infectious disease test kit industry is characterized by rapid and
significant technological change, and changes in customer requirements. As a
result, our ability to continue to compete effectively in this industry depends
upon our ability to enhance our existing products and to develop or acquire, and
introduce in a timely manner, new products that take advantage of technological
advances and respond to customer requirements. We may not be successful in
developing and marketing such new products or enhancements to our existing
products on a timely basis, if at all, and such products may not adequately
address the changing needs of the marketplace. Furthermore, rapid technological
development may result in our products or services becoming obsolete or
noncompetitive before we recover our investment in research, development and
commercialization.
IF WE ARE UNABLE TO ATTRACT AND RETAIN HIGHLY QUALIFIED SCIENTIFIC AND
MANAGEMENT PERSONNEL, THEN WE MAY NOT BE ABLE TO DEVELOP AND REFINE OUR PRODUCTS
AND SERVICES.
Our products and services are highly technical and our key personnel
must have specialized training or advanced degrees in order to develop and
refine these products and services. There are a limited number of qualified
scientific and management personnel who possess the technical background
necessary to adequately understand and improve our products and services. We
compete for these personnel with other companies, academic institutions,
government entities and other organizations engaged in research and development
of quality control products. If we are unable to attract and retain scientific
and management personnel with the appropriate credentials who are capable of
developing and refining our products and services, then our products and
services could become inaccurate or unreliable, or could fail to obtain FDA
approval and we may be unable to deliver new products.
IF OUR BBI SOURCE SCIENTIFIC, INC. AND BBI BIOSEQ, INC. SUBSIDIARIES CONTINUE TO
HAVE SUBSTANTIAL OPERATING LOSSES, THEN WE MAY NOT BE ABLE TO REALIZE THE BOOK
VALUE OF CERTAIN ASSETS.
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As a result of our July 1997 acquisition of Source Scientific, Inc., we
recorded approximately $2,200,000 of goodwill. Since this acquisition, our BBI
Source Scientific subsidiary has incurred cumulative operating losses of
approximately $1,927,000, as of December 31, 1999. That subsidiary may continue
to have operating losses and may never become profitable. As of December 31,
1999, the net book value of goodwill from the BBI Source Scientific acquisition
was approximately $1,827,000, which represented 7.0% of our total assets on that
date. This amount may become impaired to the extent that expected future
operating profits fall below the current net book value of this goodwill. If BBI
Source Scientific continues to have losses, we may not be able to realize the
net book value of this goodwill.
Our BBI BioSeq subsidiary has incurred operating losses of
approximately $1,352,000, since its acquisition in September 1998, through
December 31, 1999. This subsidiary may not be successful in developing its
in-process technology, and its technology may never achieve commercial
viability. If we cannot successfully commercially develop its technology, our
BBI BioSeq subsidiary may never become profitable.
Because these subsidiaries have incurred significant operating losses
we have also reported operating losses in our consolidated results. If we
continue to incur losses on a consolidated basis, we may be unable to realize
some or all of our deferred and current tax assets; and if we determine that
some or all of these tax assets are not realizable we will incur a charge to
earnings and write down the asset to its expected realizable value.
IF WE ARE UNABLE TO INCREASE OUR SALES OF QUALITY CONTROL PRODUCTS TO END-USERS
OF INFECTIOUS DISEASE KITS, THEN OUR FUTURE REVENUES COULD BE LESS THAN WE HAVE
PROJECTED.
Currently, we sell most of our quality control products for infectious
disease test kits to test kit manufacturers and regulators. We also sell quality
control products to end-users of infectious disease test kits, including
hospital laboratories, blood donor testing centers, public health laboratories
and commercial laboratories. Currently, we expect to increase both the frequency
of use and the number of products used by our current end-user customers.
However, end-users of infectious disease test kits may not increase their use of
our products. If the end-user market for quality control products does not
develop further, or if we are unable to increase our sales to this market, our
future revenues could be substantially less than we have projected.
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COMPETITION FROM COMPANIES WITH GREATER RESOURCES THAN WE HAVE MAY ERODE OUR
MARKET SHARE OR INCREASE OUR COSTS.
We believe that our quality control products are currently the industry
standard for the independent assessment of the performance of HIV and hepatitis
test kits. We currently have approximately 40% of the market share with respect
to sales of quality control products for infectious diseases. We do, however,
experience substantial competition and the threat of competition from:
- independent reference laboratories;
- integrated plasma collection and processing centers; and
- manufacturers of quality controls and other diagnostic components.
Many of our competitors have greater financial, manufacturing and
marketing resources than we do. The entrance or further emergence of any of
these competitors into the quality control market for infectious disease test
kits could substantially reduce our market share.
Competition for our customers is intense, and our ability to maintain
market share depends principally on our ability to provide products of the
quality and in the quantity that our customers require, as well as our ability
to provide sophisticated specialty laboratory services at competitive prices. In
addition, we derive some of our products from specimens provided by donors with
rare antibody characteristics. If competition for blood specimens from these
donors increases, our cost of obtaining blood specimens may increase.
IF WE CANNOT PROTECT OUR INTELLECTUAL PROPERTY, WE MAY BE UNABLE TO COMPETE
EFFECTIVELY.
Our ability to compete effectively with other companies depends in part
on our ability to maintain the proprietary nature of our technologies and
products. We rely primarily on a combination of trade secrets and non-disclosure
and confidentiality agreements to establish and protect our proprietary rights
in our technology and products. In addition, we have obtained five patents that
we hold jointly with the University of North Carolina at Chapel Hill relating to
compounds, pharmaceutical compositions and therapeutic methods in connection
with our drug discovery program at the University of North Carolina at Chapel
Hill. We also have 15 patents pending related to the pressure cycling technology
that our BBI BioSeq subsidiary is developing. If we have not adequately
protected our technology, or if our
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competitors misappropriate our intellectual property, we could lose market share
and our future revenues and operating income could be significantly less than
projected.
INSIDERS CONTROL A SIGNIFICANT PERCENTAGE OF VOTING POWER AND MAY EXERCISE THEIR
VOTING POWER IN A MANNER ADVERSE TO OTHER SHAREHOLDERS' INTERESTS.
Our chief executive officer, Richard T. Schumacher, his relatives, and
our other existing officers and directors collectively have voting control
approximately 35% of the outstanding shares of our common stock. Accordingly,
these shareholders, should they choose to act in concert, are in a position to
exercise a significant degree of control and to significantly influence
shareholder votes on the election of directors, increasing the authorized
capital stock, and authorizing mergers and sales of assets. These shareholders
may act in a manner that is adverse to your personal interests.
ANTI-TAKEOVER PROVISIONS IN OUR CHARTER AND BY-LAWS MAY DISCOURAGE THIRD PARTIES
FROM PURSUING A TAKEOVER.
Our amended and restated articles of organization and restated bylaws
contain provisions that may make an acquisition of us more difficult and
discourage changes in our management. These provisions could limit the price
that investors might be willing to pay in the future for shares of our common
stock. These provisions include:
- a classified board of directors;
- advance notice to the board of directors of shareholder proposals
and shareholder nominees for the board of directors;
- limitations on the ability of shareholders to remove directors and
call shareholders meetings;
- a provision that allows a majority of the directors to fill
vacancies on the board of directors; and
- the ability of the board of directors to issue, without further
shareholder approval, preferred stock with rights and privileges
that could be senior to the common stock.
We are also subject to the Massachusetts General Laws which, subject to
certain exceptions, prohibit a Massachusetts corporation from engaging in any of
a broad range of business combinations with any "interested shareholder" for a
period of three years following the date that shareholder became an interested
shareholder. These provisions could discourage a third party from pursuing a
takeover at a price considered attractive by many shareholders and could have
the effect of preventing or delaying a potential acquirer from acquiring
control.
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WARNINGS REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements contained in this prospectus under "Summary" and
"Risk Factors," and in the documents incorporated by reference, are
forward-looking statements made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. In essence, forward-looking
statements are predictions of future events. Although we would not make
forward-looking statements unless we believe we have a reasonable basis for
doing so, we cannot guarantee their accuracy, and actual results may differ
materially from those we anticipated due to a number of uncertainties, many of
which we are not aware. We urge you to consider the risks and uncertainties
discussed under "Risk Factors" and in the other documents filed with the SEC
that we have referred you to in evaluating our forward-looking statements.
You should also understand that we have no plans to update our
forward-looking statements. Our forward-looking statements speak only as of the
date of this prospectus, or in the case of forward-looking statements in
documents incorporated by reference, as of the date of those documents.
We generally identify forward-looking statements with the words "plan,"
"expect," "anticipate," "believe," "intend," "estimate," "continue," "will,"
"may," "should" and similar expressions. Examples of our forward-looking
statements may include statements related to:
- our plans, objectives, expectations and intentions;
- the timing, availability, cost of development and functionality of
products under development or recently introduced; and
- the anticipated markets for our products and the success of our
products in those markets.
USE OF PROCEEDS
The selling shareholders are selling all of the shares covered by this
prospectus for their own account. Accordingly, we will not receive any proceeds
from the resale of the shares.
We prepared this prospectus to satisfy our obligations to the selling
shareholders to register their shares. We will bear the expenses relating to
this registration, other than selling discounts and commissions, which will be
paid by the selling shareholders.
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SELLING SHAREHOLDERS
The selling shareholders named below may offer and sell up to 633,306
shares of our common stock under this prospectus. We will not receive any
proceeds from those sales. The 633,306 shares of our common stock that we are
registering under this prospectus include shares that may be issued to selling
shareholders upon the conversion of outstanding stock purchase warrants.
Paradigm Group, L.L.C. obtained its shares upon the exercise of stock
purchase warrants that it received in connection with its investment in Boston
Biomedica. The total purchase price for the warrants was $50,000. We prepared
this prospectus to satisfy the registration rights we granted to Paradigm Group
in connection with its investment.
David Kavrell, Brian Friedman, Craig Gould, Steven Rothstein and Robert
Daskal obtained their shares upon the exercise of stock purchase warrants that
they received by transfer from Paradigm Group. These shareholders and Paradigm
Group have agreed to pay us a total of $2,225,000, as payment of the aggregate
exercise price of their warrants, on the business day after the SEC declares our
registration statement relating to these shares effective.
National Securities received stock purchase warrants as a fee for
services rendered in connection with Paradigm Group's investment in Boston
Biomedica. National Securities may exercise warrants to purchase up to 40,000
shares of our common stock at an exercise price of $4.25 per share and warrants
to purchase up to 25,000 shares of our common stock at an exercise price of
$8.00 per share in connection with Paradigm Group's exercise of its warrants. In
addition, National Securities may exercise warrants to purchase up to 10,000
shares of our common stock at an exercise price of $5.25 per share. National
Securities' warrants expire on August 15, 2001.
MdBio, Inc., received 29,153 stock units in connection with its award
of $175,000 to Boston Biomedica under a manufacturing incentive program that
MdBio instituted. Each stock unit consists of one share of our common stock and
a warrant to purchase one additional share of our common stock at an exercise
price of $10.00 per share. MdBio's warrants expire on September 29, 2003.
The following table sets forth information regarding the beneficial
ownership of our common stock by the selling shareholders as of April 30, 2000
and as adjusted to reflect the sale or transfer by the selling shareholders of
the shares of our common stock being registered under this prospectus, including
the sale or transfer of shares of our common stock underlying warrants held by
selling shareholders. This information is based upon information received from
or on behalf of the selling shareholders.
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<TABLE>
<CAPTION>
SHARES BENEFICIALLY NUMBER OF SHARES BENEFICIALLY
OWNED SHARES BEING OWNED AFTER
PRIOR TO OFFERING OFFERED OFFERING
------------------- ------------ -------------------
NAME OF SECURITYHOLDER NUMBER PERCENT NUMBER NUMBER PERCENT
---------------------- ------ ------- ------ ------ -------
<S> <C> <C> <C> <C> <C>
Paradigm Group, L.L.C. 425,000 7.76% 425,000 0 *
David Kavrell 15,000 * 15,000 0 *
Brian Friedman 10,000 * 10,000 0 *
Craig Gould 20,000 * 20,000 0 *
Steven Rothstein 20,000 * 20,000 0 *
Robert Daskal 10,000 * 10,000 0 *
National Securities 75,000 (1) 1.37% 75,000 0 *
MdBio, Inc. 58,306 (2) 1.06% 58,306 0 *
</TABLE>
------------------
* Less than 1%.
(1) Consists of warrants to purchase an aggregate of 75,000 shares of our common
stock.
(2) Consists of stock units comprised of 29,153 shares of our common stock and
warrants to purchase an additional 29,153 shares of our common stock.
PLAN OF DISTRIBUTION
The selling shareholders and their pledgees, donees, transferees and
other non-sale transferees may offer their shares at various times in one or
more of the following transactions:
- in the Nasdaq National Market;
- in the over-the-counter market; or
- in privately negotiated transactions
at prevailing market prices at the time of sale, at prices related to those
prevailing market prices, at negotiated prices or at fixed prices.
The selling shareholders may also sell the shares under Rule 144
instead of under this prospectus, if Rule 144 is available for those sales.
The transactions in the shares covered by this prospectus may be
carried out by one or more of the following methods:
- ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
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- purchases by a broker or dealer as principal, and the resale by
that broker or dealer for its account as part of the distribution
under this prospectus, including resale to another broker or
dealer;
- block trades in which the broker or dealer will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal in order to facilitate the transaction; or
- negotiated transactions between selling shareholders and
purchasers, with or without a broker or dealer.
The selling shareholders and any broker-dealers or other persons acting
on behalf of parties that participate in the distribution of the shares may be
deemed to be underwriters. Any commissions or profits they receive on the resale
of the shares may be deemed to be underwriting discounts and commissions under
the Securities Act.
As of the date of this prospectus, we are not aware of any agreement,
arrangement or understanding between any broker or dealer and any of the selling
shareholders with respect to the offer or sale of the shares under this
prospectus.
We have advised the selling shareholders that, during the time each is
engaged in distributing shares covered by this prospectus, each must comply with
the requirements of the Securities Act and the Exchange Act, including Rule
10b-5 and Regulation M. Under those rules and regulations, they:
- may not engage in any stabilization activity in connection with
our securities;
- must furnish each broker that offers common stock covered by this
prospectus with the number of copies of this prospectus that are
required by each broker; and
- may not bid for or purchase any of our securities or attempt to
induce any person to purchase any of our securities other than as
permitted under the Exchange Act.
Under the terms of each of the warrants, we have agreed to indemnify
and hold harmless each selling shareholder against liabilities under the
Securities Act, which may be based upon, among other things, any untrue
statement or alleged untrue statement of a material fact or any omission or
alleged omission of a material fact, unless made or omitted in reliance upon
written information provided to us by that selling shareholder for use in this
prospectus. We have agreed to bear the expenses incident to the registration of
the shares, other than selling discounts and commissions.
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INDEMNIFICATION FOR SECURITIES ACT LIABILITIES
Our Amended and Restated Articles of Organization eliminate, subject to
certain exceptions, the personal liability of our directors for monetary damages
for breaches of fiduciary duties as directors. Our Restated Articles do not
provide for the elimination of, or any limitation on, the personal liability of
a director for (i) any breach of the director's duty of loyalty to Boston
Biomedica and our shareholders; (ii) acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law; (iii)
certain unauthorized dividends, redemptions or distributions as provided under
Section 61 of the Massachusetts Business Corporation Law; (iv) certain loans of
company assets to any of our officers or directors as provided under Section 62
of the Massachusetts Business Corporation Law; or (v) any transaction from which
the director derived an improper personal benefit. This provision of our Amended
and Restated Articles of Organization will limit the remedies available to you
in the event of breaches of any director's duties to Boston Biomedica and our
shareholders. Our Amended and Restated Articles of Organization provide that we
may, either in our by-laws or by contract, provide for the indemnification of
directors, officers, employees and agents, by whomever elected or appointed, to
the full extent permitted by law.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to our directors, officers or controlling persons
pursuant to the foregoing provisions, or otherwise, we have been informed 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.
LEGAL MATTERS
For the purpose of this offering, Brown, Rudnick, Freed & Gesmer,
Boston, Massachusetts, will pass upon the validity of the shares of common stock
covered under this prospectus.
EXPERTS
The financial statements incorporated in this prospectus by reference
to the Annual Report on Form 10-K for the year ended December 31, 1999 have been
so incorporated in reliance on the report of
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<PAGE>
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
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 rooms at 450 Fifth Street, N.W., Washington, D.C.,
20549, in Chicago, Illinois and in New York, New York. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public over the Internet on the SEC's website
at http://www.sec.gov.
We have filed with the SEC a registration statement on form S-3 under
the Securities Act of 1933, as amended, with respect to the common stock offered
in connection with this prospectus. This prospectus does not contain all of the
information set forth in the registration statement. We have omitted parts of
the registration statement in accordance with the rules and regulations of the
SEC. For further information with respect to us and our common stock, you should
refer to the registration statement and to the exhibits and schedules filed as
part of the registration statement, as well as the documents discussed below.
Statements contained in this prospectus as to the contents of any contract or
other document are not necessarily complete and, in each instance, you should
refer to the copy of the contract or document filed as an exhibit to or
incorporated by reference in the registration statement. Each statement as to
the contents of any contract or document is qualified in all respects by
reference to the contract or document itself. You may obtain copies of the
registration statement from the SEC's principal office in Washington, D.C. upon
payment of the fees prescribed by the SEC, or you may examine the registration
statement without charge at the offices of the SEC described above.
The SEC allows us to "incorporate by reference" the information that we
file with it, 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 information that we file later
with the SEC will automatically update and supersede this information. We
incorporate by reference the following documents:
- Our Annual Report on Form 10-K for the fiscal year ended December
31, 1999;
- Our Quarterly Report on Form 10-Q for the fiscal quarter ended
March 31, 2000; and
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- The description of our common stock contained in our registration
statement on Form 8-A dated October 25, 1996.
We also incorporate by reference any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, prior to the termination of the offering to which this prospectus
relates.
You may request a copy of any or all of these filings, at no cost, by
writing or telephoning us at the following address:
Boston Biomedica, Inc.
375 West Street
West Bridgewater, MA 02379
(508) 580-1900
Attn: Investor Relations
17
<PAGE>
THIS PROSPECTUS IS PART OF A REGISTRATION STATEMENT WE FILED WITH THE SEC. YOU
SHOULD RELY ONLY ON THE INFORMATION OR REPRESENTATIONS PROVIDED IN THIS
PROSPECTUS. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH ANY INFORMATION
THAT IS NOT CONTAINED IN THIS PROSPECTUS. THE SELLING SHAREHOLDERS DESCRIBED IN
THIS PROSPECTUS ARE NOT MAKING AN OFFER TO SELL OR SOLICITING AN OFFER TO BUY
ANY SHARES IN ANY JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS IS ACCURATE AS OF ANY
DATE OTHER THAN THE DATE OF THIS PROSPECTUS.
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TABLE OF CONTENTS
----------
Summary 3
Risk Factors 4
Warnings Regarding Forward-Looking Statements 11
Use of Proceeds 11
Selling Shareholders 12
Plan of Distribution 13
Indemnification for Securities Act Liabilities 15
Legal Matters 15
Experts 15
Where You Can Find More Information 16
BOSTON BIOMEDICA, INC.
Up to 633,306 Shares of Common Stock
PROSPECTUS
(Subject to Completion)
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses payable by us in connection
with the sale and distribution of the securities registered hereby. All amounts
are estimated except the SEC and Nasdaq fees. We will bear all of the costs of
issuance and distribution as follows:
<TABLE>
<S> <C>
SEC Registration Fee..................... $ 481
Nasdaq Filing Fee........................ $ 17,500
Accounting Fees and Expenses............. $ 35,000
Legal Fees and Expenses.................. $ 26,000
Costs of Printing and Engraving $ 500
Miscellaneous............................ $ 519
=========
Total........................... $ 80,000
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Our amended and restated by-laws include provisions to permit the
indemnification of our officers and directors for damages arising out of the
performance of their duties unless such damages arise out of the officer's or
director's failure to exercise his duties and to discharge the duties of his
office in good faith and in the reasonable belief that his action was in, or not
opposed to, the best interest of Boston Biomedica, and with respect to any
criminal action or proceeding, do not have reasonable cause to believe that his
conduct was unlawful.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<S> <C> <C>
4.1 Description of certificate for shares of Boston Biomedica common stock *
4.2 Form of Warrant Certificate **
5.1 Legal Opinion of Brown, Rudnick, Freed & Gesmer, P.C. filed herewith
23.1 Consent of PricewaterhouseCoopers LLP filed herewith
23.2 Consent of Brown, Rudnick, Freed & Gesmer, P.C. (included in Exhibit 5.1) filed herewith
24.1 Power of Attorney previously filed
</TABLE>
----------
*The above exhibit was previously filed as an exhibit of the same number to our
registration statement on Form S-1 (registration no. 333-10759), as amended,
filed on August 23, 1996 and is incorporated herein by reference.
**The above exhibit was previously filed as exhibit number 4.3 to our quarterly
report on Form 10-Q for the period ended September 30, 1999, and is incorporated
herein by reference.
II-1
<PAGE>
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 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;
(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; and
(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) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g) Not applicable.
(h) 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 SEC such indemnification
is against public policy as expressed in the Securities Act of 1933 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 of whether such indemnification by it is against
public policy as expressed in the Securities Act of 1933 and will be governed by
the final adjudication of such issue.
(i) Not applicable.
(j) Not applicable.
II-2
<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 the
requirements for filing on Form S-3 and has duly caused this pre-effective
amendment number 1 to the registration statement to be signed on its behalf by
the undersigned, thereunto duly authorized, in the Town of West Bridgewater,
Commonwealth of Massachusetts, on June 9, 2000.
BOSTON BIOMEDICA, INC.
By: /s/ RICHARD T. SCHUMACHER
--------------------------------
Richard T. Schumacher,
Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
PRE-EFFECTIVE AMENDMENT NUMBER 1 TO THE 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/ Richard T. Schumacher Director and Principal Executive June 9, 2000
-------------------------------------------- Officer
Richard T. Schumacher
/s/ Kevin W. Quinlan Director and Principal Financial and June 9, 2000
-------------------------------------------- Accounting Officer
Kevin W. Quinlan
* Director June 9, 2000
--------------------------------------------
Francis E. Capitanio
* Director June 9, 2000
--------------------------------------------
Calvin A. Saravis, Ph.D.
* Director and Treasurer June 9, 2000
--------------------------------------------
William R. Prather, R.Ph, M.D.
</TABLE>
* By: /s/ RICHARD T. SCHUMACHER
---------------------------------
Richard T. Schumacher,
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER
-------
<S> <C> <C>
4.1 Description of certificate for shares of Boston Biomedica common stock *
4.2 Form of Warrant Certificate **
5.1 Legal Opinion of Brown, Rudnick, Freed & Gesmer, P.C. filed herewith
23.1 Consent of PricewaterhouseCoopers LLP filed herewith
23.2 Consent of Brown, Rudnick, Freed & Gesmer, P.C. (included in Exhibit 5.1) filed herewith
24.1 Power of Attorney previously filed
</TABLE>
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*The above exhibit was previously filed as an exhibit of the same number to our
registration statement on Form S-1 (registration no. 333-10759), as amended,
filed on August 23, 1996 and is incorporated herein by reference.
**The above exhibit was previously filed as exhibit number 4.3 to our quarterly
report on Form 10-Q for the period ended September 30, 1999, and is incorporated
herein by reference.
E-1
