<PAGE>
As filed with the Securities and Exchange Commission on December 23, 1997
REGISTRATION STATEMENT NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________________________
ALPHA-BETA TECHNOLOGY, INC.
(Exact name of Registrant as specified in its charter)
Massachusetts 04-2997834
(State of incorporation) (I.R.S. Employer Identification Number)
THREE BIOTECH PARK
ONE INNOVATION DRIVE
WORCESTER, MASSACHUSETTS 01605
(508) 798-6900
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
_______________________________
SPIROS JAMAS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
ALPHA-BETA TECHNOLOGY, INC.
THREE BIOTECH PARK
ONE INNOVATION DRIVE
WORCESTER, MASSACHUSETTS 01605
(508) 798-6900
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________________
With copies to:
JOHN J. EGAN III, ESQ.
GOODWIN, PROCTER & HOAR LLP
Exchange Place
53 State Street
Boston, Massachusetts 02109-2881
(617) 570-1000
Approximate date of commencement of proposed sale to the public: From time to
time after this Registration Statement becomes effective.
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>
Title of Shares Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered Registered Offering Price Per Share /1/ Aggregate Offering Price /1/ Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par 237,364 shares $2.79685 $663,872 $196.00
value $.01 per share
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
/1/ Based upon the average of the high and low prices per share of Common Stock
reported on the NASDAQ National Market system on December 19, 1997, and
estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933, as amended.
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>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED DECEMBER 23, 1997
PROSPECTUS
- ----------
237,364 Shares
ALPHA-BETA TECHNOLOGY, INC.
COMMON STOCK
_______________
This prospectus relates to the offer and sale of 237,364 shares of common
stock, $.01 par value per share ("Common Stock"), of Alpha-Beta Technology, Inc.
("Alpha-Beta" or the "Company") by certain stockholders of the Company named
herein (the "Selling Stockholders"). See "Selling Stockholders" and "Plan of
Distribution."
The Common Stock is quoted on the NASDAQ National Market system ("NASDAQ")
under the trading symbol "ABTI."
_______________
SEE "RISK FACTORS" ON PAGE 4 FOR CERTAIN RISK FACTORS RELEVANT TO AN
INVESTMENT IN THE COMMON STOCK.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_______________
The 237,364 shares of Common Stock offered hereby (the "Shares") may be sold
from time to time by the Selling Stockholders on NASDAQ on terms to be
determined at the times of such sales. The Selling Stockholders may also make
private sales directly or through a broker or brokers. Alternatively, the
Selling Stockholders may from time to time offer Shares offered hereby to or
through underwriters, dealers or agents, who may receive consideration in the
form of discounts and commissions; such compensation, which may be in excess of
ordinary brokerage commissions, may be paid by the Selling Stockholders and/or
the purchasers of the Shares offered hereby for whom such underwriters, dealers
or agents may act. The Company is registering the Shares to satisfy the
Company's contractual obligations to the Selling Stockholders to use its
reasonable best efforts to register such Shares, but the registration of the
Shares does not necessarily mean that any of the Shares will be offered or sold
hereunder. See "Selling Stockholders" and "Plan of Distribution."
The Selling Stockholders and any dealers or agents that participate in the
distribution of the Securities offered hereby may be deemed to be "underwriters"
as defined in the Securities Act of 1933, as amended (the "Securities Act"), and
any profit on the sale of such Shares offered hereby by them and any discounts,
commissions or concessions received by any such dealers or agents might be
deemed to be underwriting discounts and commissions under the Securities Act.
The Company will receive no proceeds from the sale of the Shares by Selling
Stockholders hereunder, but the Company will pay the expenses incurred by the
Company in connection with the registration of the Shares with the Securities
and Exchange Commission (the "SEC" or the "Commission").
_______________
NO PERSON HAS BEEN AUTHORIZED IN CONNECTION WITH THE SALE OF ANY SHARES
PURSUANT TO THIS PROSPECTUS TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION OTHER THAN AS CONTAINED IN THIS PROSPECTUS, AND IF GIVEN OR MADE,
ANY SUCH INFORMATION OR REPRESENTATION MAY NOT BE RELIED ON AS HAVING BEEN
AUTHORIZED BY THE COMPANY.
_______________
NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE PURSUANT TO THIS
PROSPECTUS SHALL UNDER ANY CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE COMPANY'S AFFAIRS SINCE THE DATE OF THIS PROSPECTUS.
_______________
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITY OTHER THAN THE SECURITIES COVERED BY THIS PROSPECTUS,
NOR DOES IT CONSTITUTE AN OFFER TO OR SOLICITATION OF ANY PERSON IN ANY
JURISDICTION IN WHICH AN OFFER OR SOLICITATION MAY NOT BE LAWFULLY MADE.
The date of this Prospectus is December 23, 1997
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Commission a Registration Statement on Form
S-3 under the Securities Act with respect to the Shares. This Prospectus, which
constitutes part of the Registration Statement, omits certain of the information
contained in the Registration Statement and the exhibits thereto on file with
the Commission pursuant to the Securities Act and the rules and regulations of
the Commission thereunder. The Registration Statement, including exhibits
thereto, may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington,
D.C. 20549, and at the Commission's Regional Offices at 7 World Trade Center,
13th Floor, New York, New York 10048, and Citicorp Center, 500 W. Madison
Street, Suite 1400, Chicago, Illinois 60661-2511, and copies may be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office in Washington, D.C. Statements contained in this Prospectus as
to the contents of any contract or other document referred to are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and proxy statements and other information with the
Commission. Such reports, proxy statements and other information can be
inspected and copied at the locations described above. Copies of such materials
can be obtained by mail from the Public Reference Section of the Commission at
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, at prescribed rates.
The Commission maintains a Web site that contains reports, proxy information
statements and other information regarding registrants that file electronically
with the Commission. The address of this site is http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents previously filed by the Company with the Commission
pursuant to the Exchange Act are incorporated by reference in this Prospectus:
(i) the Annual Report on Form 10-K for the fiscal year ended December 31, 1996,
(ii) the Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1997, (iii) the Quarterly Report on Form 10-Q for the fiscal quarter ended June
30, 1997, (iv) the Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 1997, (v) the Current Report on Form 8-K filed with the Commission
on November 25, 1997, (vi) the Form 8-A/A filed with the Commission on November
25, 1997 and (vii) the description of the Common Stock contained in the
Company's Form 8-A filed with the Commission on April 11, 1992, as amended by
Form 8-A/A filed with the Commission on November 1, 1993.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of this offering shall be deemed to be incorporated by reference
in this Prospectus and to be a part hereof from the date of filing of such
documents.
The Company will provide, without charge, to each person, including a
beneficial owner, to whom a copy of this Prospectus is delivered, at the written
or oral request of such person, a copy of any or all of the documents
incorporated herein by reference (other than exhibits thereto, unless such
exhibits are specifically incorporated by reference into such documents).
Written requests for such copies should be directed to Finance Department,
Alpha-Beta Technology, Inc., Three Biotech Park, One Innovation Drive,
Worcester, Massachusetts 01605 (Telephone: (508) 798-6900).
Any statement contained herein or in a document incorporated or deemed to be
incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any subsequently filed document that is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Betafectin(R) is a registered trademark of the Company and is used as such
throughout this document.
<PAGE>
RISK FACTORS
An investment in the Company involves various risks. This prospectus
contains forward-looking statements within the meaning of the federal securities
laws. Prospective investors are cautioned that any such forward-looking
statements are not guarantees of future performance and involve risks and
uncertainties. Actual events or results may differ materially from those
discussed in the forward-looking statements as a result of various factors,
including the factors referenced in the Company's documents which are filed with
the Commission and which are incorporated by reference herein, prospective
stockholders should consider the following risk factors:
DEVELOPMENT STAGE OF THE COMPANY'S PRODUCTS; UNCERTAINTIES RELATING TO
CLINICAL TRIALS. The Company has not completed the development of any products.
The Company's products will require significant additional clinical testing and
investment prior to commercialization. Products for therapeutic use in human
health care must be evaluated in extensive human clinical trials to determine
their safety and efficacy as part of a lengthy process to obtain government
approval. Clinical trials may be terminated at any time for many reasons,
including toxicity or adverse event reporting. There can be no assurance that
any of the Company's products will be successfully developed, prove to be safe
and efficacious in clinical trials, meet applicable regulatory standards, obtain
required regulatory approvals, be capable of being produced in commercial
quantities at reasonable costs or be successfully marketed or that the Company
will not encounter problems in clinical trials that will cause the Company to
delay or suspend product development. None of the Company's products are
expected to be commercially available prior to 1999 at the earliest.
UNCERTAINTY REGARDING BETAFECTIN(R). On August 4, 1997, the Company
announced its preliminary analysis of the results of its Phase III study of
Betafectin for the prevention of serious infections in patients at high-risk for
post-operative infections. In the overall study, 21% of placebo patients
suffered serious post-operative infections compared with 17% of Betafectin(R)-
treated patients. These results did not achieve statistical significance in the
incidence of patients who developed serious infections by day 30 post-surgery,
the primary end-point of the trial.
In October 1997, the Company met with FDA officials to review the results of
its recently completed Phase III trial. As a result of these discussions, the
Company will be conducting another Phase III trial of Betafectin(R) in non-
colorectal gastrointestinal surgery patients. The confirmatory Phase III study
is designed to verify the efficacy and safety of Betafectin(R) in patients
undergoing non-colorectal GI surgeries who are at risk of post-operative
infections. The double blind, placebo-controlled study will enroll
approximately 600 patients at 30 sites throughout the United States. The study
is expected to be completed within approximately 18 months and will include an
interim analysis when 50 percent of the patients have been enrolled.
HISTORY OF LOSSES; UNCERTAINTY OF FUTURE PROFITABILITY. Alpha-Beta has
incurred operating losses since its inception in March 1988 and had accumulated
net losses of approximately $134.4 million as of September 30, 1997. The
continued development of the Company's products will require the commitment of
substantial resources to conduct research and preclinical and clinical
development programs, to develop its manufacturing capabilities, to establish
sales and marketing capabilities, and to expand quality control, regulatory and
administrative capabilities. The Company expects to continue to incur
substantial operating losses for the next several years. The size of net losses
and the time required by the Company to reach sustained profitability are highly
uncertain and to achieve profitability the Company must, among other things,
successfully complete development of its products, obtain regulatory approvals,
develop its manufacturing capabilities and establish sales and marketing
capabilities. There can be no assurance that the Company will be able to
achieve profitability at all or on a sustained basis.
ADDITIONAL FINANCING REQUIREMENTS AND ACCESS TO CAPITAL. The Company has
funded its operations and capital expenditures to date primarily through equity
financings and the RIPA debt financing. Since its inception, the Company has
raised gross proceeds of approximately $164 million through equity financings
and approximately $36 million through the RIPA and other debt financings. The
Company will require substantial funds for further research and development,
existing and planned clinical trials, regulatory approvals, expansion of its
manufacturing capabilities, and the marketing of its products. Based upon its
current rate of expenditures, the Company projects that its current cash and
marketable securities, and the interest earned from the investment thereof,
would be sufficient to meet the Company's operating expenses and capital
requirements through the fourth quarter of 1998.
3
<PAGE>
The Company will need to raise substantial additional capital to fund its
operations, including clinical trials. The Company intends to seek such
additional funding through public or private equity or debt financings,
licensing, marketing and distribution arrangements with pharmaceutical or
biotechnology companies or from other sources. The Company's ability to raise
additional funds or to enter into collaborative or other arrangements may depend
upon a number of factors including the results of the Company's clinical
development programs, discussions with the FDA and the overall market for
biotechnology stocks. There can be no assurance that additional financing will
be available on acceptable terms, if at all. If adequate funds are not
available, the Company will have to reduce certain areas of research, product
development, manufacturing or marketing activity and administration, or
otherwise modify its business strategy, and its business will be materially
adversely affected.
NO ASSURANCE OF FDA APPROVAL; COMPREHENSIVE GOVERNMENT REGULATION. The
Company's research, development and clinical programs, as well as its
manufacturing operations, are subject to extensive regulation by numerous
governmental authorities in the United States and other countries. All of the
Company's products require governmental approvals for commercialization which
have not yet been obtained. Preclinical and clinical trials and manufacturing
of many of the Company's products will be subject to the rigorous testing and
approval processes of the FDA and corresponding foreign regulatory authorities.
The regulatory process, which includes preclinical, clinical and post-clinical
testing of the Company's products to establish their safety and efficacy,
requires many years to complete and the expenditure of substantial resources.
Data obtained from preclinical and clinical activities are susceptible to
varying interpretations which could delay, limit or prevent regulatory approval.
In addition, delays or rejection may be encountered based upon changes in, or
additions to, regulatory policies for drug approval during the period of product
development and regulatory review. Delays in obtaining such approvals could
adversely affect the marketing of products developed by the Company and the
Company's ability to generate commercial product revenues. There can be no
assurance that requisite regulatory approvals will be obtained within a
reasonable period of time, if at all. Moreover, if regulatory approval of a
product is granted, such approval may impose limitations on the indicated uses
for which such product may be marketed. Further, even if such regulatory
approval is obtained, a marketed product, its manufacturer and its manufacturing
facilities are subject to continual review and periodic inspections, and later
discovery of previously unknown problems with a product, manufacturer or
facility may result in restrictions on such product or manufacturer, including
withdrawal of the product from the market. Failure to comply with the
applicable regulatory requirements can, among other things, result in fines,
suspensions of regulatory approvals, product recalls, operating restrictions and
criminal prosecution.
COMPETITION AND RISK OF TECHNOLOGICAL OBSOLESCENCE. The biotechnology and
pharmaceutical industries are subject to rapid and significant technological
change. Competitors of the Company in the United States and abroad are numerous
and include, among others, pharmaceutical and biotechnology companies,
universities and other research institutions. The Company's success depends
upon developing and maintaining a competitive position in the development of
products and technologies in its area of focus. Competition from other
biotechnology and pharmaceutical companies is intense and expected to increase
as new products enter the market and new technologies become available. The
Company's competitors may also succeed in developing technologies and products
that are more effective than any which have been or are being developed by the
Company or that render the Company's technologies or products obsolete or
noncompetitive. The Company's competitors may also succeed in obtaining patent
protection or other intellectual property rights that would block the Company's
ability to develop its potential products, or in obtaining regulatory approval
for the commercialization of their products more rapidly or effectively than the
Company. Finally, many of these competitors have substantially greater research
and development capabilities, clinical, manufacturing, regulatory and marketing
experience and financial and managerial resources than the Company.
NEED FOR EXPANSION OF COMMERCIAL MANUFACTURING CAPABILITY AND RISKS RELATING
TO RIPA LOAN. In June 1994, the Company completed construction of a commercial-
scale manufacturing facility, which is presently being operated to manufacture
clinical quantities of Betafectin. The Company believes this facility will have
the capacity to manufacture sufficient quantities of Betafectin for clinical
trials and the commercial introduction of the product. To be successful, the
Company's products will have to be manufactured in commercial quantities, within
regulatory requirements and at competitive costs. The Company has no experience
in commercial manufacturing and there can be no assurance that the Betafectin
plant will have sufficient capacity to satisfy the Company's product
requirements or that the Company will be able to manufacture Betafectin at
acceptable costs.
4
<PAGE>
In February 1993, the Company completed a $30 million debt financing through
RIPA to finance, in large part, the costs of its commercial manufacturing
facility for Betafectin in Smithfield, Rhode Island. Because this facility was
constructed prior to the issuance of final FDA approval for the commercial sale
of Betafectin, the Company will be obligated to repay the RIPA loan regardless
of whether Betafectin is approved for commercial sales. The Company is required
to make payments of approximately $300,000 per month to RIPA over the 20 year
term of the RIPA loan. The Company's obligation to repay the loan is subject to
acceleration if the Company fails to make any monthly debt service payments, or
if certain other events of default occur. The Company may also be required to
repay the loan on an accelerated basis over five years if the enabling
legislation under which RIPA issued the bonds used to fund the loan to the
Company is eliminated or if the state of Rhode Island or RIPA is subject to any
bankruptcy proceeding. The RIPA bonds are subject to refinancing by RIPA on
December 1, 1999 and the terms of the RIPA loan to the Company are subject to
adjustment in connection with such refinancing. The financial obligations
incurred by the Company in connection with the RIPA debt financing could have a
material impact on its ability to conduct its operations.
LACK OF COMMERCIAL SALES AND MARKETING EXPERIENCE. The Company does not
have experience in marketing, sales or distribution of commercial products. To
market any of its products, the Company must develop a substantial marketing and
sales force with technical expertise and the capability to support distribution.
In addition, the Company is seeking a strategic partner with the necessary sales
and distribution capabilities and expertise to assist in the commercialization
of Betafectin. The Company has not entered into any distribution arrangements
for its products and there can be no assurance that the Company will be able to
enter into such a strategic relationship without undue delays or expenditures or
to establish sales and distribution capabilities or that it will be successful
in gaining market acceptance for its products.
DEPENDENCE ON PATENTS AND PROPRIETARY TECHNOLOGY. The biotechnology and
pharmaceutical industries place considerable importance on obtaining patent and
trade secret protection for new technologies, products and processes, and the
Company's success will depend, in part, on its ability to obtain patent
protection for its products and manufacturing processes, preserve its trade
secrets and operate without infringing the proprietary rights of third parties.
In addition to Alpha-Beta's own patents and patent applications, the
Massachusetts Institute of Technology and The Brigham and Women's Hospital have
exclusively licensed rights in certain patents and patent applications to the
Company. The Company's future performance is partly dependent upon these
license agreements, which require the Company to achieve certain milestones and
make specified royalty payments. There can be no assurance that the Company
will satisfy any of these requirements.
The Company is conducting research and expects to seek additional patents in
the future, but there can be no assurance as to its success or the timeliness in
obtaining any such patents or as to the breadth or degree of protection which
any such patents will afford the Company. The patent position of biotechnology
and pharmaceutical firms is often highly uncertain and usually involves complex
legal and factual questions. There is a substantial backlog of biotechnology
patent applications at the United States Patent and Trademark Office. No
consistent policy has emerged regarding the breadth of claims covered in
biotechnology patents. Accordingly, there can be no assurance that patent
applications relating to the Company's products or technology will result in
patents being issued or that, if issued, such patents will afford adequate
protection to the Company or not be challenged, invalidated or infringed.
Furthermore, there can be no assurance that others will not independently
develop similar products and processes, duplicate any of the Company's products
or, if patents are issued to the Company, design around such patents. In
addition, the Company could incur substantial costs in defending itself in suits
brought against it or in suits in which the Company may assert its patents
against others. If the outcome of any such litigation is adverse to the
Company, the Company's business could be adversely affected. To determine the
priority of inventions, the Company may also have to participate in interference
proceedings declared by the United States Patent and Trademark Office, which
could result in substantial cost to the Company.
In addition, the Company may be required to obtain licenses to patents or
other proprietary rights of third parties. No assurance can be given that any
licenses required under any such patents or proprietary rights would be made
available on terms acceptable to the Company, if at all. If the Company does
not obtain such licenses, it could encounter delays in product market
introductions while it attempts to design around such patents or other rights,
or be unable to develop, manufacture or sell products.
The Company also seeks to protect its proprietary technology, including
technology which may not be patented or patentable, in part by confidentiality
agreements and, if applicable, inventors' rights agreements with its
collaborators, advisors, employees and consultants. There can be no assurance
that these agreements will
5
<PAGE>
not be breached, that the Company will have adequate remedies for any breach, or
that the Company's trade secrets will not otherwise be disclosed to, or
discovered by, competitors. Moreover, the Company conducts a significant amount
of research through academic advisors and collaborators who are prohibited from
entering into confidentiality or inventors' rights agreements by their academic
institutions.
PRODUCT LIABILITY. The testing, marketing and sale of human therapeutic
products entail an inherent risk of allegations of product liability, and there
can be no assurance that substantial product liability claims will not be
asserted against the Company. While the Company has clinical trials liability
insurance, the Company does not have product liability insurance coverage for
the commercial sale of Betafectin. There can be no assurance that the Company
will be able to maintain clinical trials liability insurance on acceptable terms
or that such insurance will provide adequate coverage against potential
liabilities. The Company will seek to obtain product liability insurance if and
when its products are commercialized; however, there can be no assurance that
adequate insurance coverage will be available at acceptable costs, if at all, or
that a product liability claim would not materially adversely affect the
business or financial condition of the Company.
THIRD-PARTY REIMBURSEMENT. In both domestic and foreign markets, sales of
the Company's proposed products will depend in part on the availability of
reimbursement from third-party payors such as government health administration
authorities, private health insurers and other organizations. Third-party
payors are increasingly challenging the price and cost-effectiveness of medical
products and services. Significant uncertainty exists as to the reimbursement
status of newly approved health care products. There can be no assurance that
the Company's proposed products will be considered cost effective or that
adequate third-party reimbursement will be available to enable the Company to
maintain price levels sufficient to realize an appropriate return on its
investment in product development. Legislation and regulations affecting the
pricing of pharmaceuticals may change before any of the Company's proposed
products are approved for commercialization. Adoption of such legislation could
further limit reimbursement for medical products and services. Other changes in
the U.S. health care system are likely to have a substantial impact over time on
the manner in which the Company conducts its business and may impose additional
regulations governing the conduct of the Company's business.
DEPENDENCE UPON KEY PERSONNEL. The Company is highly dependent on the
members of its management and scientific staff, the loss of one or more of whom
could have a material adverse effect on the Company. The Company also depends
on its collaborators, each of which have commitments that may limit their
availability to the Company. In addition, the Company believes that its future
success will depend in large part upon its ability to attract and retain highly
skilled scientific, managerial and marketing personnel, particularly as the
Company expands its activities in clinical trials, the regulatory approval
process, sales and manufacturing. The Company faces significant competition for
such personnel from other companies, research and academic institutions,
government entities and other organizations. There can be no assurance that the
Company will be successful in hiring or retaining the personnel it requires for
continued growth. The failure to hire and retain such personnel could
materially and adversely affect the Company's prospects.
VOLATILITY OF STOCK PRICE. The market prices for securities of
biotechnology companies, including Alpha-Beta, have historically been highly
volatile, and the market has, from time to time, experienced significant price
and volume fluctuations that are unrelated to the operating performance of such
companies. Factors such as announcements of technological innovations or new
commercial products by the Company or its competitors, disclosure of results of
clinical testing or regulatory proceedings, governmental regulation and
approvals, developments in patent or other proprietary rights, public concern as
to the safety of products developed by the Company and general market conditions
may have a significant effect on the market price of the Common Stock. In
addition, future sales of Common Stock in the public market by existing
stockholders could have an adverse effect on the price of the Common Stock.
ANTI-TAKEOVER PROVISIONS. The Company's Articles of Organization and
By-Laws include provisions that may discourage or prevent certain types of
transactions involving an actual or potential change in control of the Company,
including transactions in which the stockholders might otherwise receive a
premium for their shares over then-current market prices, and may limit the
ability of the stockholders to approve transactions that they may deem to be in
their best interests. For example, the Company's Articles of Organization
enable the Board of Directors to fix the rights and preferences of and to issue
shares of Preferred Stock. The Board of Directors could avail itself of this
authority to discourage or to prevent certain types of transactions involving an
actual or potential change of control of the Company, which could have an
adverse effect on the Company's Common Stock price. In addition, Chapter 110F
of the Corporation Law of The Commonwealth of
6
<PAGE>
Massachusetts prohibits the Company from engaging in certain business
combinations with interested stockholders unless special super-majority
stockholder votes are obtained. These provisions may have the effect of delaying
or preventing a change in control of the Company and therefore could adversely
affect the price of the Company's Common Stock. The Company also has adopted a
Shareholder Rights Plan which could have a similar effect.
THE COMPANY
Alpha-Beta is a Massachusetts corporation with its principal executive
offices at Three Biotech Park, One Innovation Drive, Worcester, Massachusetts
01605. Its telephone number is (508) 798-6900.
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of Shares by the
Selling Stockholders.
SELLING STOCKHOLDERS
The following tables provides the names of and the number of Shares offered
for sale by each Selling Stockholder in the Offering. Since the Selling
Stockholders may sell all, some or none of their Shares, no estimate can be made
of the number or percentage of Shares that each Selling Stockholder will own
upon completion of the Offering. Assuming that all of the Shares offered hereby
are sold, no Selling Stockholder would own more than 1% of the outstanding
shares of the Company's Common Stock after the Offering.
The Shares offered by this Prospectus may be offered from time to time
by the Selling Stockholders named below.
<TABLE>
<CAPTION>
NAME/1/ SHARES OWNED AS OF NOVEMBER 24, 1997/1/ SHARES OFFERED HEREBY
- --------------------------------- --------------------------------------- ---------------------
<S> <C> <C>
Claude P. Selitrennikoff 142,423 142,423
University Research Corporation 28,484 28,484
Cathy S. Taft 14,242 14,242
Jeff Palas 7,358 7,358
Sangita Tentler 7,358 7,358
Rebecca Wood 7,358 7,358
Shelly Wilson 7,358 7,358
Dawn Melcher-Fuoco 6,883 6,883
Bret Tucker 5,933 5,933
Veronica Wolf 4,272 4,272
Tamara Miller 3,797 3,797
Nicole Rauert 1,898 1,898
</TABLE>
_______________________
/1/ The information provided herein is based solely upon information
provided by each of the persons/entities named below.
The Shares being offered hereby were acquired by the Selling Stockholders
from the Company in a private placement transaction in connection with the
Company's acquisition of MycoTox, Inc., a Colorado corporation ("MycoTox")
pursuant to the Agreement and Plan of Merger, dated as of May 30, 1997 (the
"Merger Agreement"), among the Company, SmithfieldAB Corp., MycoTox and Claude
P. Selitrennikoff ("Mr. Selitrennikoff"). Pursuant to the Registration Rights
Agreement, dated as of June 9, 1997, as amended on December 23, 1997 (the
"Registration Rights Agreement"), between the Company and Mr. Selitrennikoff,
the Company agreed to use its reasonable best efforts to file a registration
statement with the Commission registering the Shares with the Commission. See
"Plan of Distribution."
The Selling Stockholders represented in the Merger Agreement that they were
acquiring the Shares from the Company without any present intention of affecting
a distribution of the Shares. In recognition of the fact,
7
<PAGE>
however, that investors may want to be able to sell their Shares when they
consider appropriate, and in accordance with the Registration Rights Agreement,
the Company has filed with the Commission a registration statement on Form S-3
(of which this Prospectus is a part) with respect to the sale of the Shares by
the Selling Stockholders from time to time. The Company will prepare and file
such amendments and supplements to the registration statement as may be
necessary to keep it effective until the earlier of (i) the later of May 1, 1998
or 120 days from the date of such registration statement's effectiveness, (ii)
the date on which all of the Shares have been sold pursuant to the registration
statement, or (iii) the date on which registration of the Shares is no longer
required by reason of Rule 144 under the Securities Act of 1933, as amended, or
other rules of similar effect.
As of November 24, 1997, Mr. Selitrennikoff is the Vice President - Anti
Fungal Research of the Company and the General Manager of MycoTox, Inc.
("MycoTox"), a wholly-owned subsidiary of the Company. Mr. Palas and Mses.
Tentler, Wood, Wilson, Fuoco, Miller and Rauert are also employees of MycoTox as
of November 24, 1997.
PLAN OF DISTRIBUTION
The Shares offered hereby may be sold from time to time by the Selling
Stockholders on NASDAQ on terms to be determined at the times of such sales.
The Selling Stockholders may also make private sales directly or through a
broker or brokers. Alternatively, the Selling Stockholders may from time to
time offer Shares offered hereby to or through underwriters, dealers or agents,
who may receive consideration in the form of discounts and commissions; such
compensation, which may be in excess of ordinary brokerage commissions, may be
paid by the Selling Stockholders and/or the purchasers of the Shares offered
hereby for whom such underwriters, dealers or agents may act. The Selling
Stockholders and any dealers or agents that participate in the distribution of
the Shares offered hereby may be deemed to be "underwriters" as defined in the
Securities Act and any profit on the sale of such Shares offered hereby by them
and any discounts, commissions or concessions received by any such dealers or
agents might be deemed to be underwriting discounts and commissions under the
Securities Act. The aggregate proceeds to the Selling Stockholders from sales
of the Shares offered by Selling Stockholders hereby will be the purchase price
of such Shares less any broker's commissions required to be paid by such Selling
Stockholder.
The Shares hereby may be sold from time to time in one or more transactions
at a fixed offering price, which may be changed, or at varying prices determined
at the time of sale or at negotiated prices.
In order to comply with the securities laws of certain states, if
applicable, the Shares offered hereby will be sold by the Selling Stockholders
in such jurisdictions only through registered or licensed brokers or dealers. In
addition, in certain states 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 Exchange Act, any person
engaged in the distribution of the Shares offered hereby may not simultaneously
engage in market making activities with respect to the Shares for a period of
two business days prior to the commencement of such distribution. In addition,
and without limiting the foregoing, the Selling Stockholders will be subject to
applicable provisions of the Exchange Act and the rules and regulations
thereunder, including, without limitation, Rules 10b-2, 10b-6 and 10b-7, which
provisions may limit the timing of purchases and sales of Shares by the Selling
Stockholders.
The Company will pay the expenses incurred by the Company in connection with
the registration with the Commission of the Shares offered hereby.
LEGAL MATTERS
The validity of the shares of Common Stock offered hereby has been passed
upon for the Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts.
John J. Egan III, Esq., a partner in the firm of Goodwin, Procter & Hoar LLP
beneficially owns 2,100 shares of Common Stock of the Company.
8
<PAGE>
EXPERTS
The financial statements of Alpha-Beta which are incorporated by reference in
this Prospectus and elsewhere in the Registration Statement have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
report with respect thereto, and are incorporated by reference herein upon the
authority of said firm as experts in giving said reports.
9
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses in connection with the issuance and distribution of the Shares
being registered are set forth in the following table (all amounts except the
registration fee are estimated):
Registration fee $ 196.00
Legal fees and expenses 10,000.00
Miscellaneous 1,000.00
----------
TOTAL $11,196.00
==========
All expenses referenced above will be borne by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is a Massachusetts corporation. Reference is made to Chapter
156B, Section 13 of the Massachusetts Business Corporation Law (the "MBCL"),
which enables a corporation in its original articles of organization or an
amendment thereto to eliminate or limit the personal liability of a director for
monetary damages for violations of the director's fiduciary duty, except (i) for
any breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Sections
61 and 62 of the MBCL (providing for liability of directors for authorizing
unauthorized distributions and for making loans to directors, officers and
certain shareholders) or (iv) for any transaction from which a director derived
an improper personal benefit.
Reference also is made to Chapter 156B, Section 67 of the MBCL, which
provides that a corporation may indemnify directors, officers, employees and
other agents and persons who serve at its request as directors, officers,
employees or other agents of another organization or who serve at its request in
any capacity with respect to any employee benefit plan, to the extent specified
or authorized by the articles of organization, a by-law adopted by the
stockholders or a vote adopted by the holders of a majority of the shares of
stock entitled to vote on the election of directors. Such indemnification may
include payment by the corporation of expenses incurred in defending a civil or
criminal action or proceeding in advance of the final disposition of such action
or proceeding, upon receipt of an undertaking by the person indemnified to repay
such payment if he shall be adjudicated to be not entitled to indemnification
under Section 67 which undertaking may be accepted without reference to the
financial ability of such person to make repayment. Any such indemnification
may be provided although the person to be indemnified is no longer an officer,
director, employee or agent of the corporation or of such other organization or
no longer serves with respect to any such employee benefit plan. No
indemnification shall be provided, however, for any person with respect to any
matter as to which he shall have been adjudicated in any proceeding not to have
acted in good faith in the reasonable belief that his action was in the best
interest of the corporation or to the extent that such matter relates to service
with respect to an employee benefit plan, in the best interest of the
participants or beneficiaries of such employee benefit plan.
Article VI of the Restated Articles of Organization of the Company provides
that, except under certain circumstances, directors of the Company shall not be
personally liable to the Company or its stockholders for monetary damages for
breach of fiduciary duties as a director.
Article VI of the Restated Articles of Organization of the Company provides
for indemnification of the officers and directors of the Company to the full
extent permitted by applicable law.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Company pursuant to the foregoing
provisions, the Commission has expressed its opinion that such indemnification
is against public policy as expressed in the Securities Act and is therefore
unenforceable.
II-1
<PAGE>
ITEM 16. EXHIBITS.
Exhibit No. Description
- ----------- -----------
4.1 Registration Rights Agreement, dated as of June 9, 1997, by and
among the Company and Mr. Selitrennikoff. /1/
4.2 Amendment, dated as of December 23, 1997, to Registration Rights
Agreement, dated as of June 9, 1997, by and among the Company and
Mr. Selitrennikoff.
4.3 Merger Agreement, dated as of May 30, 1997, among the Company,
Smithfield AB, MycoTox and Mr. Selitrennikoff. /2/
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Shares being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney (included on signature page of Registration
Statement as filed).
- ---------------------------
/1/ Incorporated by reference from Exhibit 2 to the Company's quarterly report
on Form 10-Q for the period ended June 30, 1997.
/2/ Incorporated by reference from Exhibit 1 to the Company's quarterly report
on Form 10-Q for the period ended June 30, 1997.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement; and
(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) herein 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 undersigned registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in the registration
statement;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the Shares offered therein, and the
offering of such Shares 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 Shares being registered which remain unsold at the termination of
the offering.
(b) The 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 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 Shares offered therein, and the offering of such Shares
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
II-2
<PAGE>
provisions described under Item 15 above, 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 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 Shares 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 of 1933 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, Alpha-Beta
Technology, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in Boston, Massachusetts, on the 23rd day of December, 1997.
Alpha-Beta Technology, Inc.
By: /s/ Spiros Jamas
-------------------------------------
Spiros Jamas
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that we, the undersigned officers and
directors of Alpha-Beta Technology, Inc. hereby severally constitute Spiros
Jamas and D. Davidson Easson Jr., and each of them singly, our true and lawful
attorneys with full power to them to sign for us in our names and in the
capacities indicated below, the Registration Statement filed herewith and any
and all amendments to said Registration Statement (and any registration
statement pursuant to Rule 462(b)), and generally to do all such things in our
names and in our capacities as officers and directors to enable Alpha-Beta
Technology, Inc. to comply with the provisions of the Securities Act of 1933, as
amended, and all requirements of the Securities and Exchange Commission, hereby
ratifying and confirming our signatures as they may be signed by our said
attorneys, or either of them, to said Registration Statement and either and all
amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
--------- -------- ----
/s/ Spiros Jamas President, Chief Executive December 23, 1997
- -------------------------- Officer and Director (Principal
Spiros Jamas Executive Officer)
/s/ D. Davidson Easson Jr. Executive Vice President, December 23, 1997
- -------------------------- Treasurer, Chief Operating
D. Davidson Easson Jr. Officer and Director
/s/ Gustav A. Christensen Chairman of the Board of December 23, 1997
- -------------------------- Directors
Gustav A. Christensen
/s/ Bernard Canavan Director December 23, 1997
- --------------------------
Bernard Canavan
/s/ Lawrence C. Hoff Director December 23, 1997
- --------------------------
Lawrence C. Hoff
/s/ Michael E. Porter Director December 23, 1997
- --------------------------
Michael E. Porter
/s/ Peter H. Levine, M.D. Director December 23, 1997
- -------------------------
Peter H. Levine, M.D.
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
4.1 Registration Rights Agreement, dated as of June 9, 1997, by and
among the Company and Mr. Selitrennikoff. /1/
4.2 Amendment, dated as of December 23, 1997, to Registration Rights
Agreement, dated as of June 9, 1997, by and among the Company and
Mr. Selitrennikoff.
4.3 Merger Agreement, dated as of May 30, 1997, among the Company,
SmithfieldAB, MycoTox and Mr. Selitrennikoff. /2/
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
Shares being registered.
23.1 Consent of Arthur Andersen LLP, Independent Public Accountants.
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1
hereto).
24.1 Powers of Attorney (included on signature page of Registration
Statement as filed).
- -----------------
/1/ Incorporated by reference form Exhibit 2 to the Company's quarterly report
on Form 10-Q for the period ended June 30, 1997.
/2/ Incorporated by reference form Exhibit 1 to the Company's quarterly
report on Form 10-Q for the period ended June 30, 1997.
<PAGE>
EXHIBIT 4.2
AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
For good and valuable consideration, the receipt of which is hereby
acknowledged, the undersigned hereby agree as follows:
1. Section 2(a) of the Registration Rights Agreement dated as of June 9,
1997 (the "Registration Rights Agreement") by and among Alpha-Beta Technology,
Inc. (the "Company") and Claude P. Selitrennikoff ("Mr. Selitrennikoff") shall
be amended and restated as follows:
(a) Initial Shelf Registration. On or about December 23, 1997, the
--------------------------
Company shall prepare and file with the Commission a Registration
Statement covering all of the Registerable Securities issued to the Holders
pursuant to Section 1.6(a) of the Merger Agreement. The Company shall use
its reasonable best efforts to have such Shelf Registration Statement
declared effective as soon as possible following the filing of such
Registration Statement with the Commission and to keep such Registration
Statement effective for the later to occur of (x) the end of the Effective
Period and (y) May 1, 1998. If the Effective Period for such Registration
Statement does not begin on or before February 16, 1998, the Company shall
pay to the Stockholders (as defined in the Merger Agreement) an aggregate
of $2500 per week for each 7-day period which elapses after February 16,
1998 until the day the Registration Statement is declared effective by the
Commission; provided however that in no event will such aggregate payment
exceed $50,000. The making of such payment shall not relieve the Company
of any other of the Company's obligations hereunder or relieve the Company
of any claims that the Stockholders may have against the Company as a
result of the breach hereof; provided, however, that any damages resulting
-------- -------
from any such claims shall be reduced by the amount of such payments by the
Company.
2. The Company hereby agrees to indemnify Mr. Selitrennikoff against any
and all loses, claims, damages, actions, costs and expenses (including, without
limitation, reasonable attorneys fees) arising out of or based upon any action
brought by any other Holder (as defined in the Registration Rights Agreement)
for losses resulting from Mr. Selitrennikoff's execution and delivery of this
Amendment.
3. Except as specifically set forth in this Amendment, all other
provisions of the Registration Rights Agreement shall remain in full force and
effect and are unchanged by this Amendment.
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this Amendment as of
December 23, 1997.
ALPHA-BETA TECHNOLOGY, INC.
By: /s/ Spiros Jamas
----------------------------------------
Name: Spiros Jamas
Title: Chief Executive Officer and
President
PRINCIPAL STOCKHOLDER
/s/ Claude P. Selitrennikoff
-------------------------------------------
Claude P. Selitrennikoff
<PAGE>
EXHIBIT 5.1
-----------
December 23, 1997
Alpha-Beta Technology, Inc.
Three Biotech Park
One Innovation Drive
Worcester, MA 01605
Ladies and Gentlemen:
This opinion is delivered in our capacity as counsel to Alpha-Beta
Technology, Inc., a Massachusetts corporation (the "Company"), in connection
with the preparation and filing with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended, of a registration
statement on Form S-3 (the "Registration Statement") relating to 237,364 shares
of common stock, par value $.01 per share, of the Company (the "Shares") issued
to the former Stockholders of MycoTox, Inc., a Colorado corporation ("MycoTox"),
in connection with (i) the merger of MycoTox with an into smithfieldAB Corp., a
Massachusetts corporation ("SmithfieldAB") and wholly-owned subsidiary of the
Company, pursuant to the Merger Agreement, dated as of May 30, 1997 (the "Merger
Agreement"), among the Company, SmithfieldAB, MycoTox and Claude P.
Selitrennikoff ("Mr. Selitrennikoff") and (ii) the occurrence of the first
Additional Payment Event (as defined in the Merger Agreement). The Company is
filing this Registration Statement with the Commission pursuant to the
Registration Rights Agreement, dated as of June 9, 1997, as amended on December
23, 1997, (the "Registration Rights Agreement"), by and among the Company and
Mr. Selitrennikoff.
As counsel for the Company, we have examined the Merger Agreement, the
Registration Rights Agreement, the Company's Amended and Restated Articles of
Organization and By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion. In addition, we have relied upon
representations from the Company as to certain factual matters relevant to this
opinion. We have also assumed that the Company has received the agreed upon
consideration in connection with the issuance of the Shares pursuant to the
Merger Agreement.
Based on the foregoing, we are of the opinion that the Shares are duly
authorized, legally issued, fully paid and non-assessable shares of the Company.
<PAGE>
Alpha-Beta Technology, Inc.
December 23, 1997
Page 2
We hereby consent to being named as counsel to the Company in the
Registration Statement, to the references therein to our firm under the caption
"Legal Matters," and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
<PAGE>
Exhibit 23.1
Consent of Independent Public Accountants
-----------------------------------------
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 20, 1997
included in Alpha-Beta Technology, Inc.'s Form 10-K for the year ended December
31, 1996 and to all references to our Firm included in the registration
statement.
/s/ Arthur Andersen LLP
Arthur Andersen LLP
Boston, Massachusetts
December 17, 1997
