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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
OCTOBER 21, 1998
ALPHA-BETA TECHNOLOGY, INC.
(Exact name of registrant as specified in charter)
MASSACHUSETTS 000-20023 04-2997834
(State or other jurisdiction (Commission file number) (IRS employer
of incorporation) identification no.)
THREE BIOTECH PARK, ONE INNOVATION DRIVE, WORCESTER, MA 01605
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (508) 798-6900
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Item 7 - Financial Statements, Pro Forma Financial Information and Exhibits
This Form 8-K/A is filed as an amendment to the Current Report on Form
8-K filed by Alpha-Beta Technology, Inc. on October 23, 1998, solely for the
purpose of filing certain additional exhibits.
(c) Exhibits.
Exhibit Name
4.1* Securities Purchase Agreement dated as of October 21, 1998 by and
among Alpha-Beta Technology, Inc. and HFTP Investments LLC
4.2* Registration Rights Agreement dated as of October 21, 1998 by and
among Alpha-Beta Technology, Inc. and HFTP Investments LLC
4.3* Certificate of Vote of Amending and Restating Terms Series F
Convertible Preferred Stock Prior to Issuance of Alpha-Beta
Technology, Inc. filed with the Secretary of State of The
Commonwealth of Massachusetts on October 21, 1998
4.4* Second Amendment dated as of October 21, 1998 to Shareholder
Rights Agreement dated as of February 2, 1997, as amended on
November 13, 1997, between Alpha-Beta Technology, Inc. and
BankBoston, N.A. f/k/a The First National Bank of Boston, as
Rights Agent
4.5+ Schedules to the Securities Purchase Agreement dated as of
October 21, 1998 by and among Alpha-Beta Technology, Inc. and
HFTP Investments LLC
4.6+ Form of Opinion of Goodwin, Procter & Hoar LLP
4.7+ Transfer Agent Instructions (including exhibits) dated as of
October 21, 1998 by and between Alpha-Beta Technology, Inc. and
Boston EquiServe
- ------------------
* filed previously
+ filed herewith
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ALPHA-BETA TECHNOLOGY, INC.
Date: January 7, 1999 By: /s/ Joseph M. Grimm
---------------------------------
Name: Joseph M. Grimm
Title: Chief Financial Officer
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EXHIBIT INDEX
Exhibit Name
4.1* Securities Purchase Agreement dated as of October 21, 1998 by
and among Alpha-Beta Technology, Inc. and HFTP Investments LLC
4.2* Registration Rights Agreement dated as of October 21, 1998 by
and among Alpha-Beta Technology, Inc. and HFTP Investments
LLC
4.3* Certificate of Vote of Directors Amending and Restating Terms
Series F Convertible Preferred Stock Prior to Issuance of
Alpha-Beta Technology, Inc. filed with the Secretary of State
of The Commonwealth of Massachusetts on October 21, 1998
4.4* Second Amendment dated as of October 21, 1998 to
Shareholder Rights Agreement dated as of February 2,
1997, as amended on November 13, 1997, between Alpha-Beta
Technology, Inc. and BankBoston, N.A. f/k/a The First
National Bank of Boston, as Rights Agent
4.5+ Schedules to the Securities Purchase Agreement dated as of
October 21, 1998 by and among Alpha-Beta Technology, Inc.
and HFTP Investments LLC
4.6+ Form of Opinion of Goodwin, Procter & Hoar LLP
4.7+ Transfer Agent Instructions (including exhibits) dated as of
October 21, 1998 by and between Alpha-Beta Technology, Inc.
and Boston EquiServe
- ------------------
* filed previously
+ filed herewith
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Exhibit 4.5
SCHEDULE 3(A)
Subsidiaries
ABT Securities Corp., a Massachusetts corporation
MycoTox, Inc., a Massachusetts corporation
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SCHEDULE 3(C)
Capitalization
Pursuant to the terms of the Shareholder Rights Agreement, dated as of February
2, 1997, as amended on November 13, 1997, between the Company and BankBoston,
N.A. f/k/a The First National Bank of Boston, the Company has outstanding rights
exercisable for one one-thousandth of a share of Series A Junior Participating
Cumulative Preferred Stock upon the occurrence of certain events.
The Company has agreed to issue World Capital Funding, LLC and Reedland Capital
Partners the following securities: (i) 22,500 shares of restricted Common Stock,
(ii) warrants exercisable for 25,000 shares of Common Stock at an exercise price
equal to 125% of the fair market value of the Common Stock on the Initial
Closing Date and (iii) warrants exercisable for 25,000 shares of Common Stock at
an exercise price equal to 150% of the fair market value of the Common Stock on
the Initial Closing Date.
Pursuant to the Stock Purchase Agreement dated as of November 18, 1998 by and
between the Company and Ross Financial Corporation ("Ross"), Ross has (i)
certain preemptive rights (subject to certain exceptions and limitations) with
respect to the Company's issuance of shares of Common Stock or securities
convertible into or exercisable for shares of Common Stock, and (ii) piggy-back
and demand registration rights with respect to the shares of Common Stock it
holds.
The Company has options and warrants outstanding pursuant to the terms of its
1988 Stock Option and Grant Plan and 1997 Stock Option and Grant Plan.
In connection with the waiver of certain obligations under its lease, the
Company has offered the landlord of its Worcester, Massachusetts facility a
warrant exercisable for 12,000 shares of Common Stock (a definitive agreement
has not yet been executed).
The Company has the following outstanding debt securities in excess of $25,000:
$30,330,000 letter of credit with Sumitomo Bank Limited
$341,000 debt obligation to ClinTrials
$184,967 note in favor of Flagship Bank
$125,000 debt obligation to John Brown (due upon product approval)
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SCHEDULE 3(E)
Conflicts
The Shareholder Rights Agreement, dated as of February 2, 1997, as amended on
November 13, 1997, between the Company and BankBoston, N.A. f/k/a The First
National Bank of Boston.
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SCHEDULE 3(G)
Material Changes
None.
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SCHEDULE 3(H)
Litigation
None.
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SCHEDULE 3(N)
Intellectual Property
None.
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SCHEDULE 3(P)
Liens
Fleet National Bank, as trustee, has a first priority mortgage on the real
property and fixtures located at the Company's Smithfield, Rhode Island
facility.
Flagship Bank has a first priority purchase money security interest in certain
assets at the Company's Worcester, Massachusetts and Smithfield, Rhode Island
facilities.
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SCHEDULE 3(T)
Tax Status
None.
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SCHEDULE 3(U)
Certain Transactions
None.
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SCHEDULE 4(D)
Use of Proceeds
Operations and working capital.
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Exhibit 4.6
EXHIBIT C
FORM OF COMPANY COUNSEL OPINION
Based on the foregoing, and subject to the assumptions and
qualifications set forth below, we are of the opinion that:
1. The Company and each of its subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has the requisite corporate power and
authority to conduct its business, and to own, lease and operate its properties,
as described in the Company's Annual Report on Form 10-K for the year ended
December 31, 1997. The Company and each of its subsidiaries is duly qualified as
a foreign corporation to do business and is in good standing in each
jurisdiction in which its ownership of property or the nature of the business
conducted by it makes such qualification necessary and in which the failure to
be so qualified or be in good standing would have a material adverse effect on
the business, operations, financial conditions or results of operations of the
Company and its subsidiaries taken as a whole or on the transactions
contemplated by the Securities Purchase Agreement or by the agreements and
instruments to be entered into in connection with the Securities Purchase
Agreement, or on the authority or ability of the Company to perform its
obligations under the Transaction Documents (as defined below) (a "MATERIAL
ADVERSE EFFECT").
2. The Company has the requisite corporate power and authority to
execute, deliver and perform its obligations under the Securities Purchase
Agreement, the Certificate of Designations, the Registration Rights Agreement
and the Irrevocable Transfer Agent Instructions (collectively, the "TRANSACTIONS
DOCUMENTS"), including issuance of the Preferred Shares and the Conversion
Shares in accordance with the terms thereof. The filing of the Certificate of
Designations and the execution and delivery of the Transaction Documents by the
Company and the consummation by it of the transactions contemplated therein have
been duly authorized by the Company's Board of Directors and no further consent
or authorization of the Company, its Board of Directors or its stockholders is
required therefor (except to the extent that stockholder approval may be
required pursuant to the rules of the Nasdaq National Market for the issuance of
a number of Conversion Shares greater than 19.99% of the number of shares of
Common Stock outstanding immediately prior to the Initial Closing Date). The
Transaction Documents have been duly executed and delivered by the Company and
the Certificate of Designations has been duly executed and properly filed by the
Company with the Secretary of the Commonwealth of Massachusetts in accordance
with Massachusetts Business Corporation Law (the "MBCL") and has become
effective under the MBCL. The Transaction Documents constitute the valid and
binding agreements of the Company, enforceable against the Company in accordance
with their respective terms, except as such enforceability may be limited by
general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies.
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3. The issuance and sale of the Preferred Shares has been duly
authorized, and when issued in accordance with the terms of the Securities
Purchase Agreement, the Preferred Shares will be validly issued, fully paid and
non-assessable and free of all taxes, liens, charges and preemptive rights with
respect to the issue thereof. The Conversion Shares are duly authorized and
reserved for issuance upon conversion of the Preferred Shares in accordance with
the Securities Purchase Agreement and the Certificate of Designations, and when
issued in accordance with the Securities Purchase Agreement, the Certificate of
Designations and the Conversion Shares will be validly issued, fully paid and
non-assessable and free of all taxes, liens, charges and preemptive rights with
respect to the issue thereof.
4. As of the date hereof, the authorized capital stock of the Company
consists of (i) _________ shares of Common Stock, par value $0.01 per share, of
which ______________ shares are issued and outstanding, and (ii) ____________
shares of Preferred Stock, par value $_____ per share, of which _______ shares
are issued and outstanding. None of such Common Stock or such Preferred Stock is
subject to preemptive rights or other rights of the stockholders of the Company
pursuant to the Articles of Incorporation or the By-laws or under the MBCL.
Except as set forth on Schedule 3(c) of the Securities Purchase Agreement, there
are no outstanding shares of capital stock or other securities convertible into
or exchangeable or exercisable for shares of the capital stock of the Company.
The rights, preferences and privileges of the Preferred Shares are as stated in
the Certificate of Designations. The Board of Directors of the Company has
reserved for issuance shares of Common Stock sufficient to provide for the
issuance of the Conversion Shares.
5. Subject to the accuracy of the Buyers' representations in Section 2
of the Securities Purchase Agreement, the Preferred Shares and the Conversion
Shares may be issued to you pursuant to the Transaction Documents without
registration under the 1933 Act or the securities laws of any state.
6. No authorization, approval, consent, filing or other order of any
Federal or state governmental body, regulatory agency, self-regulatory
organization or stock exchange or market, or the stockholders of the Company
(except to the extent that stockholder approval may be required pursuant to the
rules of the Nasdaq National Market for the issuance of a number of Conversion
Shares greater than 19.99% of the number of shares of Common Stock outstanding
immediately prior to the Initial Closing Date), or any court, or, to our
knowledge, any third party, is required to be obtained by the Company to enter
into and perform its obligations under the Transaction Documents or for the
issuance and sale of the Preferred Shares and the Conversion Shares as
contemplated by the Transaction Documents.
7. To our knowledge, and except as disclosed in the Securities Purchase
Agreement, there is no action, suit, proceeding, inquiry or investigation before
or by any court, public board or body or any governmental agency or
self-regulatory organization pending or threatened against the Company or any of
its subsidiaries or any of the properties of the Company or any of its
subsidiaries which might reasonably be expected to have a Material Adverse
Effect.
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8. The execution, delivery and performance by the Company of the
Transaction Documents, the consummation by the Company of the transactions
contemplated thereby and the compliance by the Company with the terms thereof
does not (a) violate, conflict with or constitute a default (or an event which,
with the giving of notice or lapse of time or both, constitutes or would
constitute a default) under (i) the Articles of Organization or the By-laws,
or (ii) any agreement, note, lease, mortgage, deed or other instrument to which
the Company is a party or by which the Company is bound and which the Company
has filed as an exhibit to its reports filed with the SEC under the 1934 Act or
which, to our knowledge, the Company otherwise is required or will be required
to file as an exhibit to its reports under the 1934 Act; or (b) result in any
violation of any statute, law, rule or regulation known to us to be applicable
to the Company or, to the best of our knowledge, any order, writ, injunction or
decree, if such violation would have a Material Adverse Effect.
9. The Company is not an "investment company" or any entity controlled
by an "investment company," as such terms are defined in the Investment Company
Act of 1940, as amended.
-------------------------
In the process of our review of the SEC Documents, although we have not
engaged in any independent investigation and do not assume any responsibility
for the accuracy or completeness of the information contained therein, nothing
has come to our attention that would lead us to believe that any of such SEC
Documents contains any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading as of its
filing date with the SEC.
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Exhibit 4.7
TRANSFER AGENT INSTRUCTIONS
ALPHA-BETA TECHNOLOGY, INC.
October 21, 1998
Boston EquiServe
Shareholder Services Division
150 Royall Street
Boston, Massachusetts 02021
Attn: Therese Collins
Ladies and Gentlemen:
Reference is made to that certain Securities Purchase Agreement to be
entered into by and among Alpha- Beta Technology, Inc., a Massachusetts
corporation (the "COMPANY"), and the buyers named therein (collectively, the
"HOLDERS") pursuant to which the Company is issuing to the Holders shares of its
Series F Convertible Preferred Stock, par value $0.01 per share (the "PREFERRED
SHARES"), which shall be convertible into shares of the Company's Common Stock,
par value $0.01 per share (the "COMMON STOCK"). This letter shall serve as our
irrevocable authorization and direction to you (provided that you are the
transfer agent of the Company at such time) to issue shares of Common Stock upon
conversion of the Preferred Shares (the "CONVERSION SHARES") to or upon the
order of a Holder from time to time upon (i) surrender to you of a properly
completed and duly executed Conversion Notice, in the form attached hereto as
Exhibit I, which has been acknowledged by the Company as indicated by the
signature of a duly authorized officer of the Company thereon, and (ii)
certificates representing Preferred Shares being converted (or an
indemnification undertaking with respect to such share certificates in the case
of their loss, theft or destruction). So long as you have previously received
(x) written confirmation from the Company that a registration statement covering
resales of the Conversion Shares has been declared effective by the Securities
and Exchange Commission (the "SEC") under the Securities Act of 1933, as amended
(the "1933 ACT"), and (y) a copy of such registration statement, then the
certificates representing the Conversion Shares shall not bear any legend
restricting transfer of the Conversion Shares thereby and should not be subject
to any stop-transfer restriction. Provided, however, that if you have not
previously received (i) written confirmation from the Company that a
registration statement covering resales of the Conversion Shares has been
declared effective by the SEC under the 1933 Act, and (ii) a copy of such
registration statement, then the certificates for the Conversion Shares shall
bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE
STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT
AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL, IN A FORM
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REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR APPLICABLE STATE SECURITIES LAWS OR UNLESS
SOLD PURSUANT TO RULE 144 UNDER SAID ACT."
and, provided further, that the Company may from time to time notify you to
place stop-transfer restrictions on the certificates for the Conversion Shares
in the event a registration statement covering the Conversion Shares is subject
to amendment for events then current.
A form of written confirmation from the Company that a registration
statement covering resales of the Conversion Shares has been declared effective
by the SEC under the 1933 Act is attached hereto as Exhibit II.
Please be advised that the Holders are relying upon this letter as an
inducement to enter into the Securities Purchase Agreement and, accordingly,
each Holder is a third party beneficiary to these instructions.
Please execute this letter in the space indicated to acknowledge your
agreement to act in accordance with these instructions. Should you have any
questions concerning this matter, please contact me at (508) 798-6900.
Very truly yours,
ALPHA-BETA TECHNOLOGY, INC.
By: /s/ Joseph M. Grimm
Name: Joseph M. Grimm
Title: Chief Financial Officer
ACKNOWLEDGED AND AGREED:
BOSTON EQUISERVE
By: /s/ Katherine Anderson
Name: Katherine Anderson
Title: Director, Client Services
Date: October 21, 1998
2
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EXHIBIT I
FORM OF CONVERSION NOTICE
Attached hereto.
3
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ALPHA-BETA TECHNOLOGY, INC.
CONVERSION NOTICE
Reference is made to the Certificate of Designations, Preferences and
Rights, of the Series F Convertible Preferred Stock of Alpha-Beta Technology,
Inc. (the "CERTIFICATE OF DESIGNATIONS"). In accordance with and pursuant to the
Certificate of Designations, the undersigned hereby elects to convert the number
of shares of Series F Convertible Preferred Stock, par value $0.01 per share
(the "PREFERRED SHARES"), of Alpha-Beta Technology, Inc., a Massachusetts
corporation (the "COMPANY"), indicated below into shares of Common Stock, par
value $0.01 per share (the "COMMON STOCK"), of the Company, by tendering the
stock certificate(s) representing the Preferred Shares specified below as of the
date specified below.
Date of Conversion: __________________________________________________
Number of Preferred Shares to be converted: __________________________
Stock certificate no(s). of Preferred Shares to be converted: ________
Please confirm the following information:
Conversion Price: ____________________________________________________
Number of shares of Common Stock
to be issued: ________________________________________________________
Please issue the Common Stock into which the Preferred Shares are being
converted and, if applicable, any check drawn on an account of the Company in
the following name and to the following address:
Issue to: ___________________________________
===================================
Facsimile Number: ___________________________________
Authorization: ___________________________________
By: _______________________________
Title: ____________________________
Dated: ___________________________________
Account Number:
(if electronic book entry transfer): _______________________________
Transaction Code Number
(if electronic book entry transfer): _______________________________
4
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EXHIBIT II
FORM OF NOTICE OF EFFECTIVENESS
OF REGISTRATION STATEMENT
Boston EquiServe
Shareholder Services Division
150 Royall Street
Boston, Massachusetts 02021
Attn: Therese Collins
Re: ALPHA-BETA TECHNOLOGY, INC.
Ladies and Gentlemen:
We are Alpha-Beta Technology, Inc., a Massachusetts corporation (the
"COMPANY"), and have represented the Company in connection with that certain
Securities Purchase Agreement (the "PURCHASE AGREEMENT") entered into by and
among the Company and the buyers named therein (collectively, the "HOLDERS")
pursuant to which the Company issued to the Holders shares of its Series F
Convertible Preferred Stock, par value $0.01 per share (the "PREFERRED SHARES"),
which shall be convertible into shares of the Company's common stock, par value
$0.01 per share (the "COMMON STOCK"). Pursuant to the Purchase Agreement, the
Company also has entered into a Registration Rights Agreement with the Holders
(the "REGISTRATION RIGHTS AGREEMENT") pursuant to which the Company agreed,
among other things, to register the Registrable Securities (as defined in the
Registration Rights Agreement), including the shares of Common Stock issuable
upon conversion of the Preferred Shares, under the Securities Act of 1933, as
amended (the "1933 ACT"). In connection with the Company's obligations under the
Registration Rights Agreement, on ____________ ___, 1998, the Company filed a
Registration Statement on Form S-3 (File No. 333-_____________) (the
"REGISTRATION STATEMENT") with the Securities and Exchange Commission (the
"SEC") relating to the Registrable Securities which names each of the Holders as
a selling stockholder thereunder.
In connection with the foregoing, we advise you that a member of the
SEC's staff has advised us by telephone that the SEC has entered an order
declaring the Registration Statement effective under the 1933 Act at [ENTER TIME
OF EFFECTIVENESS] on [ENTER DATE OF EFFECTIVENESS] and we have no knowledge that
any stop order suspending its effectiveness has been issued or that any
proceedings for that purpose are pending before, or threatened by, the SEC.
Very truly yours,
ALPHA-BETA TECHNOLOGY, INC.
By: ________________________
cc: [LIST NAMES OF HOLDERS]
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