As filed with the Securities and Exchange Commission on January 21, 2000
File No- 333-_____
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
ABATIX CORP.
(Exact name of registrant as specified in its charter)
Delaware 75-1908110
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) Identification No.)
8201 Eastpoint Drive, Suite 500
Dallas, Texas 75227
Telephone (214) 381-1146
(Address, including zip code, and
telephone number, including
area code, of registrant's
principal executive offices)
Copies to:
Frank J. Cinatl, IV Jim Schneider, Esq.
Vice President Atlas, Pearlman, Trop & Borkson, P.A.
Abatix Corp New River Center
8201 Eastpoint Drive, Suite 500 350 E. Las Olas Boulevard, Suite 1700
Dallas, Texas 75227 Fort Lauderdale, Florida 33301
(214) 381-1146 (954) 766-7858
(Name, address, including zip code, and telephone number, including area code of
agent for service)
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 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]
<PAGE>
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) 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 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. [ ]
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate offering Amount of
registered registered unit (1) price registration fee
---------------------- ------------ ------------------ ------------------ ----------------
<S> <C> <C> <C> <C>
Common Stock 23,500 $2.0315 $47,740 $14
<FN>
(1) Pursuant to Rule 457(c) the proposed maximum aggregate offering price per
unit was calculated based upon the average of the bid and ask price within
5 business days prior to the date of filing this registration statement.
</FN>
</TABLE>
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with section 8(a) of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to section 8(a) may
determine.
<PAGE>
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING SECURITY HOLDERS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
PROSPECTUS
Subject to completion, dated January 21, 2000
ABATIX CORP.
8201 EASTPOINT DRIVE, SUITE 500
DALLAS, TEXAS 75227
(214) 381-1146
23,500 SHARES OF COMMON STOCK
Issued pursuant to the Asset Purchase Agreement
Of Keliher Hardware Co.
THE SHARES OFFERED IN THIS PROSPECTUS INVOLVE A HIGH DEGREE OF RISK. YOU SHOULD
CAREFULLY CONSIDER THE "RISK FACTORS" REFERENCED ON PAGE 3 IN DETERMINING
WHETHER TO PURCHASE THE ABATIX CORP. COMMON STOCK.
Abatix's common stock is quoted on the Nasdaq SmallCap Market under the symbol
"ABIX."
On January 20, 2000, the last sale price of the common stock on the SmallCap
tier of the Nasdaq was $2.0625 per share.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is January 21, 2000.
<PAGE>
Table of Contents
PAGE
Summary 3
Risk Factors 3
Use of Proceeds 5
Sales by Selling Security Holders 5
Plan of Distribution 6
Description of Securities 7
Legal Matters 8
Experts 8
Where To Find More Information 8
Indemnification 9
We have not authorized any dealer, salesperson or other person to give any
information or represent anything not contained, or incorporated by reference,
in this prospectus. You should not rely on any unauthorized information. This
prospectus does not offer to sell or buy any shares in any jurisdiction in which
it is unlawful. The information incorporated by reference or in this prospectus
is current as of the date on the cover.
<PAGE>
SUMMARY
We market and distribute 30,000 personal protection and safety equipment and
supplies, and construction tools to approximately 5,000 customers in the
asbestos abatement, construction, industrial safety and hazardous materials
industries. At December 31, 1999, we operated eight distribution centers in
Texas, California, Arizona, Washington and Nevada. Approximately 41 percent of
our products are sold to asbestos and lead abatement contractors, 21 percent to
the industrial safety market, 19 percent to construction related firms and 19
percent to other firms, including hazardous material contractors and other
distributors.
On January 20, 1999, we acquired substantially all of the assets of Keliher
Hardware Co. In conjunction with the this acquisition, we issued an aggregate of
23,500 shares to the stockholders of Keliher.
RISK FACTORS
WE FACE SUBSTANTIAL COMPETITION IN OUR INDUSTRY, WHICH AFFECTS OUR ABILITY TO BE
PROFITABLE.
We primarily sell commodity products with no exclusive territory rights. The
market for our products is highly competitive. Many of our competitors are
significantly larger and have significantly more resources than Abatix. In
addition, many smaller competitors are better equipped to react to trends in the
local marketplace.
WE ARE SUBJECT TO DEVELOPMENTS IN THE COMMERCIAL REAL ESTATE INDUSTRY, AND ANY
REDUCTION IN NEW OR RENOVATED COMMERCIAL REAL ESTATE CONSTRUCTION SUBSTANTIALLY
AFFECTS OUR OPERATIONS.
We are dependent on the commercial real estate industry in the areas where we
operate. As the general economy continues to expand and the need for new or
renovated commercial real estate increases, there will be demand for our
products. However, the real estate industry is cyclical. A slowdown or downturn
in the in the general U.S. economy and/or the commercial real estate industry
could have a material adverse effect on our growth and profitability and the
trading price of our stock.
INCREASES IN THE PRICES OF PRODUCTS WE ACQUIRE AFFECT OUR PROFIT MARGINS AND OUR
ABILITY TO REMAIN PROFITABLE.
At times, the price of products we purchase increase. It is possible these price
increases will not be able to be passed on to our customers. In addition,
approximately 15% of our purchases are petroleum-based products. Our ability to
supply petroleum-based products could be significantly impacted by increases in
oil prices and/or shortages in oil supply. Our product margins and profitability
would be negatively impacted by any of these or similar events.
<PAGE>
WE NEED TO KEEP UP TECHNOLOGICAL ADVANCES OR WE WILL NOT BE ABLE TO MAINTAIN
PROFIT MARGINS OR COMPETE EFFECTIVELY WITH OTHER COMPANIES IN OUR INDUSTRY.
The implementation of technology is having and will continue to impact our
business. The on-line ability of customers to check product availability, to
order, to track orders, and to check pricing, along with other functions, will
allow them to operate more efficiently. In addition, technology solutions will
increase the productivity of distributors. We have plans to develop an
e-commerce solution, however, our solution may not result in revenue gains or
significantly lower costs to offset the initial and ongoing investments. In
addition, we have many competitors with substantially more resources to develop
technology solutions.
OUR OPERATIONS MAY SUFFER FROM COMPUTER PROBLEMS RELATING TO THE YEAR 2000.
To date we have not encountered any problems relating to the well-publicized
Year 2000 issues and we do not anticipate any Year 2000 problems. However, there
remain risks that not all Year 2000 issues have been discovered. For example, o
The year 2000 is a leap year, which could cause problems for computer hardware
and software. o We have not tested every computer program. When used, the
computer program could mistake a two-digit year as "1900" instead
of "2000."
o There are no assurances our vendors' systems are Year 2000 compliant.
It is possible that manufacturing systems have delayed or stopped
production and the vendor is currently supplying needs from their own
stock, quickly depleting available inventory for future use.
o There are no assurances our customers' systems are Year 2000 compliant.
If our customers' production lines have slowed or quit, they will not
have a need for our products which will severely limit our ability to
maintain or grow revenues. In addition, an increase in the payment
cycle from customers would significantly impact our cash flow and the
collectibility of our accounts receivable.
WE RELY ON VARIOUS CAPITAL FACILITIES TO MAINTAIN GROWTH AND PROFITABILITY, AND
ANY INCREASES IN THE COST OF CAPITAL OR THE AVAILABILITY OF CAPITAL
SUBSTANTIALLY AFFECTS THE PROFITABILITY OF OUR OPERATIONS.
We are reliant on the availability of capital resources to fund our internal
growth and to fund our seasonal growth in inventory and accounts receivables. We
have credit lines established with a major bank. Although, this bank has
accommodated our needs in the past, there is no assurance they will do so in the
future. In addition, the interest rate on our credit lines is variable, tied to
the prime rate. The prime rate has increased in the last several months. Future
increases in the prime rate will negatively affect our profitability.
WE DEPEND ON KEY PERSONNEL WHO MAY NOT CONTINUE TO WORK FOR US.
We are substantially dependent on the continued services of our key personnel,
<PAGE>
including our chief executive officer and president, chief operations officer,
chief financial officer, vice president of sales and marketing, and branch
managers. Each of these individuals has acquired specialized knowledge and
skills with respect to Abatix and its operations. As a result, if any of these
individuals were to leave us, we could face substantial difficulty in hiring
qualified successors and could experience a loss in productivity while any such
successor obtains the necessary training and experience.
We will need to hire additional personnel in all areas. The competition for
qualified personnel is intense. At times, we have experienced difficulties in
hiring personnel with the right training or experience, particularly in sales
and technical areas. If we do not succeed in attracting new personnel, or
retaining and motivating existing personnel, our business will be adversely
affected.
MARKET CHANGE MAY IMPACT OUR ABILITY TO SUSTAIN GROWTH LEVELS AND AFFECT OUR
ABILITY TO BE PROFITABLE.
Because of the uncertain nature of the rapidly changing market, period-to-period
comparisons of operating results are not likely to be meaningful. In addition,
you should not rely on the results for any period as an indication of future
performance. We currently expect our operating expenses will continue to
increase as we expand our sales and marketing operations, continue to develop
our e-commerce solution and acquire complementary businesses. If revenue growth
levels do not meet our expectations, our financial results will be adversely
affected.
OUR STOCK PRICE HAS HISTORICALLY BEEN VOLATILE, WHICH MAY MAKE IT MORE DIFFICULT
FOR YOU TO RESELL SHARES WHEN YOU WANT AT PRICES YOU FIND ATTRACTIVE.
The trading price of our common stock has been and may continue to be subject to
wide fluctuations on small volume. Our stock price may fluctuate in response to
a number of events and factors, such as:
o quarterly variations in operating results,
o announcements of technological innovations or new products by us or our
competitors, o the operating and stock price performance of other companies that
investors may deem comparable, and o news reports relating to trends in our
markets.
In addition, the stock market in general has experienced extreme volatility that
often has been unrelated to the operating performance of such companies. These
broad market and industry fluctuations may adversely affect the price of our
stock, regardless of our operating performance.
OFFICERS AND DIRECTORS BENEFICIALLY OWN APPROXIMATELY 56% OF OUR STOCK; THEIR
INTERESTS COULD CONFLICT WITH YOURS; SIGNIFICANT SALES OF STOCK HELD BY THEM
COULD HAVE A NEGATIVE EFFECT ON ABATIX'S STOCK PRICE.
Abatix's directors and executive officers beneficially own approximately 56% of
our outstanding common stock as of December 31, 1999. Terry W. Shaver
<PAGE>
individually owns 35% of our outstanding common stock. He is a member of our
Board of Directors and is also the Chairman and CEO. Gary L. Cox individually
owns 20% of our outstanding common stock. He is also a member of our Board of
Directors and is the Executive Vice President and COO. As a result of their
ownership and positions, our directors and executive officers collectively are
able to significantly influence all matters requiring stockholder approval,
including the election of directors and approval of significant corporate
transactions. Such concentration of ownership may also have the effect of
delaying or preventing a change in control of Abatix. In addition, sales of
significant amounts of shares held by Abatix's directors and executive officers,
or the prospect of these sales, could adversely affect the market price of
Abatix common stock.
USE OF PROCEEDS
The proceeds from the sale of the common stock offered pursuant to this
prospectus are solely for the account of the selling stockholders. Accordingly,
we will not receive any proceeds from the sale of the shares by the selling
stockholders.
SALES BY SELLING SECURITY HOLDERS
The selling stockholders own all of the common stock registered for sale
pursuant to this prospectus. All of the shares offered hereby were acquired by
the selling stockholders in connection with the purchase of the assets of
Keliher. Such shares for each stockholder do not exceed one percent (1%) of our
outstanding capitalization as of the date of this prospectus. None of the
selling stockholders has a material relationship with us, except that certain
selling stockholders are or will be non-officer employees of Abatix.
The following table sets forth certain information known to us with respect to
beneficial ownership of Abatix's common stock as of January 17, 2000, by each
selling stockholder. The following table assumes that the selling stockholders
sell all of the shares. We are not able to determine the exact number of shares
that actually will be sold.
<TABLE>
<CAPTION>
NAME OF SELLING NUMBER OF SHARES TO SHARES TO BE OWNED PERCENTAGE TO BE
SECURITY HOLDER SHARES OWNED BE OFFERED AFTER OFFERING OWNED AFTER OFFERING
- --------------- ------------ ---------- -------------- --------------------
<S> <C> <C> <C> <C>
John Keliher 8,838 8,838 - -
George Keliher 8,034 8,034 - -
Steve Owen 3,414 3,414 - -
Barbara Brodsky 3,214 3,214 - -
</TABLE>
PLAN OF DISTRIBUTION
Shares of common stock covered hereby may be offered and sold from time to time
by the selling stockholders. The selling stockholders will act independently of
us in making decisions with respect to the timing, manner and size of each sale.
The selling stockholders may sell the shares being offered hereby: (i) on The
SmallCap tier of the Nasdaq Market, or otherwise at prices and at terms then
<PAGE>
prevailing or at prices related to the then current market price; or (ii) in
private sales at negotiated prices directly or through a broker or brokers, who
may act as agent or as principal or by a combination of such methods of sale or
pursuant to Rule 144. The selling stockholders and any underwriter, dealer or
agent who participate in the distribution of such shares may be deemed to be
"underwriters" under the Securities Act, and any discount, commission or
concession received by such persons might be deemed to be an underwriting
discount or commission under the Securities Act.
Any broker-dealer participating in such transactions as agent may receive
commissions from the selling stockholders (and, if acting as agent for the
purchaser of such shares, from such purchaser). The selling stockholders will
pay usual and customary brokerage fees. Broker-dealers may agree with the
selling stockholders to sell a specified number of shares at a stipulated price
per share, and, to the extent such a broker-dealer is unable to do so acting as
agent for the selling stockholders, to purchase as principal any unsold shares
at the price required to fulfill the broker-dealer commitment to the selling
stockholders. Broker-dealers who acquire shares as principal may thereafter
resell such shares from time to time in transactions in the over-the-counter
market, in negotiated transactions or by a combination of such methods of sale
or otherwise at market prices prevailing at the time of sale or at negotiated
prices, and in connection with such resales may pay to or receive from the
purchasers of such shares commissions computed as described above.
We have advised the selling stockholders that the anti-manipulation rules under
the Exchange Act may apply to sales of shares in the market and to the
activities of the selling stockholders and their affiliates. The selling
stockholders have advised us that during such time as the selling stockholders
may be engaged in the attempt to sell shares registered hereunder, they will:
o not engage in any stabilization activity in connection with any of our
securities;
o not bid for or purchase any of our securities or any rights to acquire
our securities, or attempt to induce any person to purchase any of our
securities or rights to acquire our securities other than as permitted
under the Exchange Act;
o not effect any sale or distribution of the Shares until after the
prospectus shall have been appropriately amended or supplemented, if
required, to set forth the terms thereof; and
o effect all sales of Shares in broker's transactions through
broker-dealers acting as agents, in transactions directly with market
makers, or in privately negotiated transaction where no broker or other
third party (other than the purchaser) is involved.
The selling stockholders may indemnify any broker-dealer that participates in
transactions involving the sale of the shares against certain liabilities,
including liabilities arising under the Securities Act. Any commissions paid or
any discounts or concessions allowed to any such broker-dealers, and any profits
received on the resale of such shares, may be deemed to be underwriting
<PAGE>
discounts and commissions under the Securities Act if any such broker-dealers
purchase shares as principal.
In order to comply with the securities laws of certain states, if applicable,
our common stock will be sold in such jurisdictions only through registered or
licensed brokers or dealers. In addition, in certain states, the common stock
may not be sold unless such shares 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.
We have agreed to use our best efforts to maintain the effectiveness of this
registration statement with respect to the shares of common stock offered
hereunder by the selling stockholders until the sale of such shares. There can
be no assurance the selling stockholders will sell all or any of the shares of
common stock offered hereunder.
DESCRIPTION OF SECURITIES
We are currently authorized to issue up to 5,000,000 shares of Common Stock, par
value $.001 per share, of which 1,711,148 shares were outstanding as of December
31, 1999. The Company is also authorized to issue up to 500,000 shares of
Preferred Stock, par value $1.00 per share, none of which shares were
outstanding as of the date of this Prospectus
COMMON STOCK
The shares of common stock are subject to the dividend rights of the holders of
Preferred Stock, and would then be entitled to share, on a ratable basis, any
dividends declared by the Board of Directors out of legally available funds. If
the Company were liquidated or dissolved, our assets would first be used to
satisfy debts to creditors and to satisfy the preferred stockholders. Any
remaining assets would be divided, on a pro rata per share basis, among the
holders of the common stock.
The holders of common stock are entitled to one vote per share. These holders do
not have cumulative voting rights, which means the holders of more than 50% of
the shares voting for the election of Directors can elect all of the Directors
if they choose to do so, and, in such event, the holders of the remaining shares
will not be able to elect any Directors. Our By-Laws require only a majority of
the issued and outstanding shares of common stock be represented to constitute a
quorum and to transact business at a stockholders meeting. The common stock has
no preemptive, subscription or conversion rights and is not redeemable.
PREFERRED STOCK
Without any action of the stockholders, our Board of Directors my issue the
Preferred Stock. Such resolutions may authorize the issuance of preferred stock
in one or more series and may fix and determine dividend and liquidation
preferences, voting rights, conversion privileges, redemption terms and other
privileges and rights of the shares of each authorized series.
<PAGE>
LEGAL MATTERS
Legal matters in connection with the securities being offered will be passed
upon for the Company by Atlas, Pearlman, Trap & Borkson, P.A., 350 East Las Olas
Boulevard, Suite 1700, Fort Lauderdale, Florida 33496.
EXPERTS
The consolidated financial statements and schedule of the Company as of December
31, 1998 and 1997, and for each of the years in the three-year period ended
December 31, 1998, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon on the
authority of said firm as experts in accounting and auditing.
WHERE TO FIND MORE INFORMATION
This prospectus is part of a Registration Statement on Form S-3 that we filed
with the Securities and Exchange Commission. Certain information in the
Registration Statement has been omitted from this prospectus in accordance with
the rules of the SEC. We file the annual, quarterly and special reports, proxy
statements and other information with the SEC. You can inspect and copy the
Registration Statement as well as reports, proxy statements and other
information we have filed with the SEC at the public reference room maintained
by the SEC at 450 Fifth Street, NW, Washington, D.C. 20549. You can obtain
copies from the public reference room of the SEC at 450 Fifth Street, NW,
Washington, D.C. 20549 upon payment of certain fees. You can call the SEC at
1-800-732-0330 for further information about the public reference room. We are
also required to file electronic versions of these documents with the SEC, which
may be accessed through the SEC's internet site at http://www.sec.gov. Our
common stock is quoted on the SmallCap tier of The Nasdaq Market. Reports, proxy
and information statements and other information concerning Abatix Corp. may be
inspected at The Nasdaq Stock Market at 1735 K Street, NW, Washington, D.C.
20006.
The SEC allows us to "incorporate by reference" certain of our publicly filed
documents into this prospectus, which means that information included in these
documents is considered part of this prospectus. Information we file with the
SEC subsequent to the date of this prospectus will automatically update and
supersede this information. We incorporate by reference the documents listed
below and 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, until the selling
stockholders have sold all their shares.
The following documents filed with the SEC are incorporated by reference in this
prospectus:
1. Our Annual Report on Form 10-K for the year ended December 31, 1998.
2. Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999.
3. Our Quarterly Report on Form 10-Q for the quarter ended June 30, 1999.
4. Our Quarterly Report on Form 10-Q for the quarter ended September 30, 1999.
<PAGE>
5. Our Current Reports on Form 8-K, filed with the SEC on June 15, 1999 and
June 16, 1999.
We will furnish without charge to you, on written request, a copy of any or all
of the documents incorporated by reference, other than exhibits to such
documents. You should direct any requests for documents to Frank Cinatl,
Investor Relations, 8201 Eastpoint Drive, Suite 500, Dallas, Texas 75227,
telephone: (214) 381-1146.
INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The Registrant will bear no expenses in connection with any sale or other
distribution by the selling stockholders of the shares being registered other
than the expenses of preparation and distribution of this Registration Statement
and the prospectus included in this Registration Statement. Such expenses are
estimated to be:
SEC registration fee $ 100
Legal fees and expenses 1,000
Accounting fees and expenses 1,000
NASD listing fees 100
Miscellaneous fees and expenses 750
----------------
Total $ 2,950
================
Item 15. Indemnification of Directors and Officers.
Section 145 of the General Corporation Law of Delaware empowers a corporation to
indemnify any officer, director or other corporate agents in terms sufficiently
broad to indemnify such persons under certain circumstances for liabilities
(including reimbursement for expenses incurred) arising under the Securities Act
of 1933, as amended. The Certificate of Incorporation and By-Laws of the Company
require the Company to indemnity its directors and officers to the fullest
extent permitted by the General Corporation Law of the State of Delaware.
Item 16. Exhibits.
Exhibit Description
2 Asset Purchase Agreement of Keliher Hardware Co. was filed
with the Form 10-K for the year ended December 31, 1998.
5 Opinion of Atlas, Pearlman, Trop & Borkson, P. A. relating
to the issuance of shares of Common Stock pursuant to the
Asset Purchase Agreement of Keliher Hardware Co.
23 (a) Consent of Atlas, Pearlman, Trop & Borkson, P.A. included in
the opinion filed as exhibit (5)hereto
23 (b) Independent Auditors' Consent
27 (a) Financial Data Schedules for 1998 was filed with the Form
10-K for the year ended December 31, 1998.
27 (b) Financial Data Schedules for quarter ended March 31, 1999
was filed with the Form 10-Q for the quarter ended March 31,
1999.
27 (c) Financial Data Schedules for quarter ended June 30, 1999 was
filed with the Form 10-Q for the quarter ended June 30,
1999.
27 (d) Financial Data Schedules for quarter ended September 30,
1999 was filed with the Form 10-Q for the quarter ended
September 30, 1999.
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(a) To file, during any period in which offerings 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;
(b) That, for the purposes of determining any liability under the Securities
Act, each 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
(c) 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.
(d) That, for purposes of determining any liability under the Act, each filing
of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act that is incorporated by reference in the
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas and the State of Texas, on the 18th day of
January, 2000.
ABATIX CORP.
By: /S/ TERRY W SHAVER
Terry W. Shaver Chairman of the Board,
President and Principal Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated
SIGNATURE TITLE DATE
/s/ Terry W. Shaver Chairman of the Board, President and January 21, 2000
- ----------------------- Principal Executive Officer
Terry W. Shaver
/s/ Gary L. Cox Executive Vice President, Chief January 21, 2000
- ----------------------- Operating Officer and Director
Gary L. Cox
/s/ Frank J. Cinatl, IV Vice President and Principal January 21, 2000
- ----------------------- Financial and Accounting Officer and
Frank J. Cinatl, IV Director
/s/ Lamont C. Laue Director January 21, 2000
- -----------------------
Lamont C. Laue
/s/ Donald N. Black Director January 21, 2000
- -----------------------
Donald N. Black
Exhibit 5 and 23(a)
-------------------
January 21, 2000
Abatix Corp.
8311 Eastpoint Drive, # 400
Dallas, TX 75227
RE: ABATIX CORP. (THE "COMPANY") - REGISTRATION STATEMENT ON FORM S-3
Dear Sir/Madam:
We refer to the Registration Statement (the "Registration Statement") filed
by Abatix, Corp., a Delaware corporation, with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, in connection with the
sale of up to 23,500 shares of Common Stock, $.001 par value per share (the
"Shares"), as set forth in the above Registration Statement.
In our capacity as counsel to the Company, we have examined the original or
certified copies of all such records of the Company and all such agreements,
certificates of public officials, certificates of officers or representatives of
the Company and others, and such other documents as we deem relevant and
necessary as a basis for the opinions hereinafter expressed. In such examination
we have assumed the genuineness of all signatures on original documents and the
conformity to original documents of all copies submitted to us as conformed or
photostat copies. As to various questions of fact material to such opinions, we
have relied upon statements or certificates of officials and representatives of
the Company and others.
Based upon the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing under
the laws of the State of Delaware.
2. The Shares offered for the account of the Selling Shareholders, as set
forth in the Registration Statement, have been duly and validly authorized.
3. The Shares have been duly and validly issued and are fully paid and
non-assessable.
We hereby consent to filing of this opinion as an Exhibit to the
Registration Statement. We also hereby consent to the use of our name under
"Legal Matters" in the Prospectus constituting part of the Registration
Statement.
Very truly yours,
/s/ATLAS, PEARLMAN, TROP & BORKSON, P.A.
----------------------------------------
ATLAS, PEARLMAN, TROP & BORKSON, P.A.
JMS/bb
The Board of Directors
Abatix Corp.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
------------
KPMG LLP
Dallas, Texas
January 20, 2000
