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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 24, 1999
REGISTRATION NO. 333-79671
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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PRE-EFFECTIVE AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BIO-PLEXUS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
CONNECTICUT
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
06-1211921
(I.R.S. EMPLOYER IDENTIFICATION NO.)
129 RESERVOIR ROAD
VERNON, CONNECTICUT 06066
(860) 870-6112
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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RICHARD L. HIGGINS
PRESIDENT AND CHIEF EXECUTIVE OFFICER
BIO-PLEXUS, INC.
129 RESERVOIR ROAD
VERNON, CONNECTICUT 06066
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
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COPIES TO:
WALTER W. SIMMERS, ESQ.
PEPE & HAZARD LLP
GOODWIN SQUARE
225 ASYLUM STREET
HARTFORD, CONNECTICUT 06103-4302
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Approximate date of commencement of proposed sale to the public: As soon as
practicable 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 of 1933, 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 of 1933, 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: [ ]
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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 WILL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SELLING STOCKHOLDERS MAY NOT SELL THE 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 IS NOT SOLICITING AN
OFFER TO BUY THE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION, DATED AUGUST 24, 1999
PROSPECTUS
BIO-PLEXUS, INC.
3,500,000 SHARES OF
COMMON STOCK
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The selling stockholders identified on page 14 of this prospectus are offering
up to 3,500,000 shares of Bio-Plexus, Inc. common stock.
The prices at which the shares will be sold will be determined at the time of
sale by the selling stockholders. The shares will be sold at fixed prices that
may be changed, at market prices prevailing at the time of sale, at prices
related to those prevailing market prices, or at negotiated prices.
Our common stock is traded on the Nasdaq SmallCap Market under the symbol
"BPLX." On August 20, 1999, the last sale price of our common stock as reported
on the SmallCap Market of the National Association of Securities Dealers
Automated Quotation System was $4.00 per share.
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AN INVESTMENT IN THE SECURITIES OFFERED BY THIS PROSPECTUS INVOLVES A HIGH
DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 2 OF THIS PROSPECTUS.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 1999.
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BIO-PLEXUS, INC.
TABLE OF CONTENTS
<TABLE>
<S> <C>
SUMMARY..................................................... 1
RISK FACTORS................................................ 2
DESCRIPTION OF THE BUSINESS................................. 9
RECENT DEVELOPMENTS......................................... 9
DESCRIPTION OF THE CAPITAL STOCK............................ 10
DETERMINATION OF OFFERING PRICE............................. 11
USE OF PROCEEDS............................................. 11
DILUTION.................................................... 12
SELLING STOCKHOLDERS........................................ 12
PLAN OF DISTRIBUTION........................................ 15
LEGAL MATTERS............................................... 16
EXPERTS..................................................... 16
WHERE YOU CAN FIND MORE INFORMATION......................... 16
INFORMATION INCORPORATED BY REFERENCE....................... 16
</TABLE>
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SUMMARY
This summary highlights information contained elsewhere in this prospectus. This
summary may not contain all the information that you should consider before
investing in the common stock. You should read the entire prospectus carefully.
In particular, you should read the section entitled "Risk Factors," which
explains that your investment in shares of our common stock involves a high
degree of risk. You should also review carefully our other SEC filings such as
our Form 10-K for the fiscal year ended December 31, 1998.
In this prospectus, "Bio-Plexus," "we," "us," and "our" refer to Bio-Plexus,
Inc.
BIO-PLEXUS, INC.
We are engaged principally in the design, development and manufacture of safety
medical products used by healthcare professionals. Our initial products have
been safety blood collection needles and related accessory products that are
marketed under the Punctur-Guard(R) and Drop-It(R) trade names. The safety blood
collection needle utilizes a patented technology that greatly reduces the risk
of accidental needlesticks by internally blunting the needle before removal from
the patient. To date, our primary focus has been:
- - the design, development, testing and evaluation of our safety blood collection
needle;
- - the design and development of the molds, machinery and systems used to
manufacture the blood collection needle; and
- - the development of strategic partnerships with major healthcare companies in
order to assist with the development and expansion of our product lines.
Bio-Plexus was incorporated under the laws of the State of Connecticut in
September 1987. Our executive offices and manufacturing facility are located at
129 Reservoir Road, Vernon, Connecticut 06066, and our telephone number is (860)
870-6112.
THE OFFERING
Common Stock:
<TABLE>
<S> <C>
Offered by the selling stockholders.................... 3,500,000 common shares
Outstanding at August 20, 1999......................... 13,541,998 common shares
Total shares outstanding after the offering............ 17,041,998 common shares
</TABLE>
Offering Price................ The public offering price of the common stock
offered under this prospectus will be
determined at the time of sale. See "Selling
Stockholders" and "Plan of Distribution."
Use of Proceeds............... We will not receive any proceeds from the sale
of the common stock by the selling
stockholders. We will receive proceeds when the
warrants are exercised. See "Use of Proceeds."
Risk Factors.................. Investing in our common stock is highly risky.
You should be able to bear a complete loss of
your investment. See "Risk Factors."
Dividends..................... We have no plans to issue dividends on the
common stock in the foreseeable future. See
"Risk Factors."
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RISK FACTORS
You should consider carefully the following risk factors, as well as the other
information contained in this prospectus, before deciding to purchase shares of
our common stock. An investment in our common stock involves a high degree of
risk.
RISKS INHERENT TO BIO-PLEXUS
WE MAY NEVER ACHIEVE AND SUSTAIN PROFITABILITY.
We have experienced annual operating losses and negative operating cash flow
since our incorporation in 1987. For the six months ended June 30, 1999, we had
a net loss of $1,036,000. As of June 30, 1999, we had an accumulated deficit of
approximately $64 million. There can be no assurance that we will become
profitable.
IF THE NUMBER OR PRODUCTIVITY OF OUR INDEPENDENT DISTRIBUTORS AND MARKETING
STAFF DOES NOT INCREASE, OUR REVENUES WILL NOT INCREASE.
Sales of our products are currently significantly below the levels required to
achieve profitability. We need to increase the number of hospitals using our
products, and are currently focusing our primary efforts in those areas of the
country, including California, Tennessee and Texas, where new laws mandate the
use of safety products. However, there can be no assurance that we will be able
to increase our sales volume. Increasing sales volume will depend on our ability
to:
- increase our sales and marketing activities and expand our marketing
staff;
- expand our product sales overseas by adding new distributors in foreign
countries;
- increase the number of group purchasing organizations who use our
products; and
- increase the number of domestic distributors who carry our products.
IF SUFFICIENT FUNDS TO FINANCE OUR BUSINESS ARE NOT AVAILABLE TO US WHEN NEEDED
OR ON ACCEPTABLE TERMS, THEN OUR OPERATIONS, PRODUCT DEVELOPMENT AND
COMMERCIALIZATION EFFORTS MAY BE DELAYED, REDUCED, DISCONTINUED OR ALTERED.
Until we become profitable, we will need to raise additional working capital to
fund operations and develop and launch new products. The amount of those future
funds will vary based upon a number of factors, including:
- the level of sales of current products,
- revenue from strategic partners,
- the cost of developing and introducing new products, and
- the time required to launch new products,
Additional funds may not be available or may not be available on terms
acceptable to us. Furthermore, additional financings could substantially dilute
our shareholders. For the balance of 1999, our working capital needs are
expected to be satisfied from existing financing arrangements and cash generated
from operations. However, we expect that we will need additional funding sources
beyond 1999.
OUR PRODUCTS MAY PROVE TOO EXPENSIVE TO MARKET SUCCESSFULLY, WHICH MAY ADVERSELY
AFFECT GROWTH AND OPERATING RESULTS.
Using safety medical products, including safety needles, is relatively new.
Although the market for needles is large and safety needle legislation has been
passed in several states including, California, Tennessee and Texas, actual
sales of our products may be much less than the market's potential. The higher
cost of safety
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medical products, including our safety needle, may be an impediment to full
market acceptance. To date, safety needles represent a small percentage of total
market share, compared to standard needles. There can be no assurance that our
products will achieve full market acceptance.
Market acceptance of our products will depend in large part upon our ability to
demonstrate:
- the operational advantages of our blood collection needle (e.g.,
ease-of-use, limited training required, similarity to standard products);
- the safety advantages of our blood collection needle (e.g., Punctur-Guard
blood collection needles reduced the rate of accidental needlesticks
among healthcare workers by 76%, the highest rate of any device studied,
in a Centers for Disease Control study); and
- the cost effectiveness of our blood collection needle compared to both
standard and other safety needles.
BECAUSE WE ARE SIGNIFICANTLY SMALLER THAN THE MAJORITY OF OUR NATIONAL
COMPETITORS, WE MAY LACK THE FINANCIAL RESOURCES TO CAPTURE INCREASED MARKET
SHARE.
The blood collection needle market is highly competitive. The leading
manufacturers of standard needles are Becton-Dickinson and Company and Sherwood
Medical Company, Inc., a subsidiary of Tyco International. Becton-Dickinson, as
well as numerous other smaller companies, manufacture safety devices that use
plastic sleeves or shields to cover the needle. Our safety needles compete with
both standard and safety needles. We believe that the Punctur-Guard(R) blood
collection needle is superior in design, quality and convenience of use to all
other safety needles on the market today and can compete effectively against
safety and standard needles. However, there can be no assurance that our
products will be able to compete successfully with the products of these other
companies because:
- some of these larger competitors have the potential marketing advantage
of being able to offer multiple products to our current or prospective
customers;
- these competitors may use their economic strength or market position to
influence the market; and
- one or more of these competitors could also improve their current
products or develop new products which may compete more effectively with
our products.
PRODUCT DEVELOPMENT AND COMMERCIALIZATION EFFORTS MAY BE REDUCED OR DISCONTINUED
IF WE CANNOT ENTER AND MAINTAIN COLLABORATIVE ARRANGEMENTS WITH STRATEGIC
PARTNERS.
Our future success depends in part on our ability to secure strategic partners.
Agreements with strategic partners may help provide working capital to develop
and manufacture our products and marketing channels to sell our products. From
the latter part of 1996 to the present, we have focused our efforts on
establishing joint venture agreements on one or more of our major product lines.
We currently are negotiating with potential strategic partners. However, we are
not certain that we will be able to secure additional strategic partnerships for
our products on terms favorable to us. If we do not enter into strategic
alliances, we will require additional funds to develop, manufacture, and market
our products.
BECAUSE WE DEPEND ON A SINGLE TECHNOLOGY, WE ARE VULNERABLE TO SUPERIOR
COMPETING PRODUCTS OR NEW TECHNOLOGIES THAT COULD MAKE OUR PRODUCT OBSOLETE.
Our strategy is to develop a series of safety needles and related products based
upon our patented structure. Because we have a narrow focus on a particular
product line and technology, we are vulnerable to the development of superior
competing products and to changes in technology which could eliminate or reduce
the need for our products. While we believe there will be no significant change
in the need for, or the desirability of, our products in the foreseeable future,
there can be no assurance that those changes will not occur.
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IF WE ARE UNABLE TO DEVELOP SUCCESSFULLY NEW PRODUCTS, OUR SALES WILL BE
ADVERSELY AFFECTED
Our ability to develop additional applications and products using our patented
structure is important to our longer-term success. There can be no assurance
that any of those applications or products will be developed or, if developed,
that they will be successful. There can be no assurance that the development of
future products will be completed, that clinical trials of those products, when
and if undertaken, will be successful, or that there will be a significant
demand for those products if development is completed. Developing additional
applications and products also will require capital.
WE DEPEND UPON PATENTS AND PROPRIETARY RIGHTS TO PROTECT THE INTELLECTUAL
PROPERTY WHICH FORMS THE BASIS OF OUR LIMITED PRODUCT LINE. THE LOSS OF, OR A
DISPUTE REGARDING, OUR INTELLECTUAL PROPERTY RIGHTS WOULD NEGATIVELY IMPACT OUR
COMPETITIVE POSITION.
Our success depends on our ability to maintain the proprietary nature of our
technology through a combination of patents and other intellectual property
protection devices. We have been granted three patents in the United States and
in a number of foreign countries, and have pending applications for our
self-blunting safety needle in the United States and in a number of foreign
countries. Although we believe these patents will be sufficient to protect the
structure and design of our current and proposed products, there are additional
concerns:
- There can be no assurance that the protection provided by these patents
will be broad enough to prevent competitors from introducing similar
devices or that these patents, if challenged, will be upheld by the
courts of any jurisdiction.
- Patent infringement litigation, either to enforce our patents or defend
against patent infringement suits, would be expensive, and if it occurs,
would divert our resources from other planned uses.
- Any adverse outcome in that litigation could similarly deplete our
resources and tarnish our reputation.
- Patent applications filed in foreign countries and patents granted in
those countries are subject to laws, rules and procedures which differ
from those in the United States. Patent protection in those countries may
be different from patent protection provided by U.S. laws and may not be
as favorable to us.
We also attempt to protect our proprietary information by limiting access to our
facilities and by requiring the execution of a confidentiality agreement by any
person (including contractors and Bio-Plexus employees) receiving proprietary
information. There can be no assurance that our program of patent protection,
confidentiality agreements and restricted access to our facilities will be
sufficient to protect our proprietary technology from competitors nor whether we
will be able to secure patents on any future products.
OUR OPERATIONS AND FINANCIAL PERFORMANCE COULD BE NEGATIVELY AFFECTED IF WE
CANNOT ATTRACT AND RETAIN KEY PERSONNEL.
We believe that our ability to implement successfully our business strategy and
to operate profitably depends upon the skills, experience and continued
contributions of our executive officers and certain marketing and technical
people, some of whom may be difficult to replace. We particularly depend upon
the efforts and abilities of Richard L. Higgins, our President, and Thomas K.
Sutton, our Executive Vice President. We would be adversely affected if Messrs.
Higgins and Sutton or any of our other key personnel became unable or unwilling
to continue in their present positions. We do not have employment agreements
with either Messrs. Higgins or Sutton and therefore cannot assure you that the
services of these personnel will continue to be available to us. We do not
maintain key man life insurance policies on our executives that would adequately
compensate us for any loss of services of these executives.
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OUR STOCK PRICE MAY BE LOW WHEN YOU WANT TO SELL YOUR SHARES.
The market price of our common stock is likely to be highly volatile. For
example, as of August 20, 1999, the 52 week high on our common stock was $6.875
and the 52 week low was $1.563. Factors which may have an effect on the market
price of our common stock and may cause it to fluctuate dramatically include:
- fluctuations in our operating results,
- legislative and regulatory action in the safety medical products and
healthcare markets,
- our announcements of technological developments, and
- our competitors' announcements of technological developments.
BECAUSE WE DEPEND UPON SINGLE SUPPLIERS FOR MAJOR COMPONENTS OF OUR PRODUCTS, WE
ARE VULNERABLE TO PRODUCTION DISRUPTIONS, INCREASED PRICES AND UNFAVORABLE
EXCHANGE RATE FLUCTUATIONS.
We purchase our needle cannula from a single supplier located in a foreign
country and maintain a positive business relationship with this supplier. We
have not experienced any production delays as a result of doing business with
this supplier. In addition, other components of our blood collection needles are
each manufactured by separate single major suppliers. We own or otherwise
control the molds used by those suppliers to manufacture the component parts of
our needles and could establish alternative supply arrangements if necessary.
However, some of these components have lead times of several months, and changes
in suppliers would disrupt production schedules. We are also subject to the
risks of both increased supplier prices and unfavorable exchange rate
fluctuations. Recently, we have not experienced any significant cost increases
as a result of these risks.
THE INABILITY TO CONTINUE TO LIST OUR SHARES ON THE NASDAQ STOCK MARKET WOULD
ADVERSELY AFFECT OUR STOCK PRICE AND THE MARKET FOR OUR SHARES.
Although our common stock is traded on the Nasdaq SmallCap Market, there is no
assurance that the common stock will continue to be included in that market, or
that an active market for our stock will exist. The requirements for continued
listing on the Nasdaq SmallCap Market include that we maintain net assets of at
least $2.0 million. As of June 30, 1999 we were in compliance with those
requirements. However, we may need additional equity funding to maintain the
Nasdaq minimum net asset requirements. Our inability to raise this funding could
negatively affect our net asset level. The delisting of our stock from the
Nasdaq SmallCap Market could cause disruption in trading of the common stock and
impede any potential future financing. If our stock were delisted, you would
experience greater difficulty selling your shares.
RISKS RELATED TO THE NATURE OF OUR BUSINESS
WE FACE INHERENT PRODUCT LIABILITY RISKS AS A MANUFACTURER OF SAFETY MEDICAL
PRODUCTS. PRODUCT LIABILITY CLAIMS EXCEEDING OUR PRODUCT LIABILITY INSURANCE
COVERAGE COULD MATERIALLY AND ADVERSELY AFFECT OUR FINANCIAL CONDITION AND
RESULTS OF OPERATIONS.
As a manufacturer and seller of medical devices, specifically including safety
needles, we face an inherent business risk of exposure to product liability
claims in the event of product failure or claim of harm caused by product
operation. Product failure could result in injury to the patient or loss of
blood and could expose healthcare workers to the risk of bloodborne pathogens.
We are not aware of any claim against us based upon the use or the failure of
Bio-Plexus blood collection needles. However, there can be no assurance that
material product liability losses will not occur in the future. In addition, if
any of our products prove to be defective, we may be required to recall those
products. Bio-Plexus maintains product liability insurance against any of those
claims in amounts we believe to be adequate. There can be no assurance
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that if we are found liable, the claim will not exceed our insurance limits.
There is also no assurance that we will be able to continue to obtain product
liability insurance on acceptable terms or at all.
During the fourth quarter of 1998, we recalled some of our blood collection
needle products due to mislabeling pertaining to the shelf-life of these
products manufactured during the latter part of 1996 and in 1997. The final
number of units associated with the recall is approximately 2,300,000 units, of
which 1,600,000 units were located at foreign distributors. Replacement product
was shipped to customers or credit was granted towards future product shipments.
The total estimated cost of the product is approximately $390,000, and was
recorded as cost of goods sold expense in 1998 with a corresponding short-term
liability recorded on our balance sheet for any product that had not been
replaced as of December 31, 1998. Any future product replacement or credit given
towards future purchases will be offset against this liability in future
periods.
WE ARE SUBJECT TO STATUTORY ANTI-TAKEOVER PROVISIONS WHICH COULD INHIBIT
ACQUISITION BIDS, PREVENTING YOU FROM RECEIVING A PREMIUM ON YOUR SHARES.
We are subject to the Connecticut Business Corporation Act which contains
provisions regulating business combinations which may be viewed as having
anti-takeover effects. Business combinations are generally defined to include
mergers, asset sales, particular types of stock issuances and other transactions
resulting in a disproportionate financial benefit to an interested shareholder.
An interested shareholder is generally defined as an owner of 10% or more of the
outstanding voting power of the Bio-Plexus stock. Because there is no preferred
stock outstanding as of the date of this prospectus, all voting power in
Bio-Plexus presently resides in its common stock. In general, the provisions of
the Connecticut Act:
- prohibit Bio-Plexus from engaging in a business combination with an
interested shareholder, unless the combination satisfies particular
requirements or is approved by the affirmative vote of at least 80% of
the voting power and two-thirds of the voting power, other than stock
held by the interested shareholder or its affiliates or associates;
- prohibit any particular business combination with an interested
shareholder for a period of five years after the time the person became
an interested shareholder unless the combination is approved in a
prescribed manner; and
- require that any action of the Bio-Plexus stockholders taken by written
consent without a meeting must be unanimous.
OUR OPERATIONS MAY BE NEGATIVELY IMPACTED BY NEW GOVERNMENT REGULATIONS.
Government regulation is a significant factor in the development and marketing
of our products and in our ongoing manufacturing and research and development
activities. Our blood collection needle is a Class II device under the
regulatory structure of the federal Food, Drug, and Cosmetic Act which is
administered by the United States Food and Drug Administration. We are free to
market and sell the Punctur-Guard(R) blood collection needle in the United
States subject to ongoing regulatory controls by the FDA, including the
following:
- We must adhere to good manufacturing practices regulations which include
validation testing, quality assurance, quality control and documentation
procedures, and
- Our facilities are subject to periodic inspections.
The ongoing regulatory controls are subject to change. If we are unable to
comply with these new government regulations, we would be required to
discontinue marketing of our products. This would negatively affect our
revenues.
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RISKS RELATED TO THE OFFERING
YOU MAY INCUR SUBSTANTIAL IMMEDIATE DILUTION IN THE NET BOOK VALUE OF THE SHARES
YOU PURCHASE.
Upon completion of this offering, you may incur substantial immediate dilution
in the net book value per share of common stock you purchase compared to the
offering price for those shares. Furthermore, if all of the shares registered by
this prospectus are sold, the dilution could be significantly greater. See
"Dilution" for more information.
THE SALES OF SUBSTANTIAL SHARES OF OUR COMMON STOCK MAY DEPRESS OUR STOCK PRICE.
If our stockholders sell substantial amounts of our common stock in the public
market following this offering, the market price of our common stock could fall.
These sales also might make it more difficult for us to sell equity or
equity-related securities in the future at a time and price that we deem
appropriate.
Depending upon the date on which debentures and warrants held by the selling
stockholders are converted and exercised, the number of shares to be issued
under the debentures and warrants to the selling stockholders could represent a
significant percentage of the outstanding shares of common stock. As of August
20, 1999, 13,541,998 of our authorized 25,000,000 shares of common stock are
issued and outstanding. We cannot predict the effect that future sales of such
common stock in this offering or the sale of shares of common stock after this
offering in the public market will have on the market price of the common stock.
Sales of substantial amounts of common stock, or the perception that those sales
could occur, could materially adversely affect the market price of our common
stock.
The actual number of shares of stock to be issued upon conversion of the
debentures will vary inversely with the market price of our common stock.
Theoretically, there is no limit on the amount of stock we may issue. However,
the terms of the debentures limit the aggregate amounts to less than 20% of the
shares outstanding on the date the debentures were issued, unless a greater
amount is approved by our stockholders or Nasdaq. Nevertheless, in the event of
a severe drop in our stock price, this aggregate amount may be sufficient to
cause a change of control of Bio-Plexus.
Excluding the warrants held by the selling stockholders, as of August 20, 1999,
warrants to purchase 999,830 shares of common stock at prices ranging from $2.00
to $9.36 and options to purchase 499,233 shares of common stock at prices
ranging from $1.38 to $7.75 were outstanding. Shares acquired upon exercise of
these warrants and options will be eligible for sale in the public market from
time to time subject to vesting. The possible sale of a significant number of
these shares in the future may also cause the price of our common stock to
decline.
THE BOARD OF DIRECTORS IS AUTHORIZED TO ISSUE 3,000,000 SHARES OF PREFERRED
STOCK, WITHOUT STOCKHOLDER APPROVAL, HAVING RIGHTS AND PREFERENCES SENIOR TO THE
COMMON STOCK.
We are authorized to issue 3,000,000 shares of preferred with rights and
preferences established by our Board of Directors. There are no preferred shares
presently outstanding, however, we have traditionally sold preferred stock to
raise capital. If we issue this "blank check" preferred stock, it could
adversely affect holders of common stock. These effects could include the
following:
- if dividends on the preferred stock have not been made, dividends on our
common stock may be restricted;
- to the extent the preferred stock has voting rights, the voting rights of
our common stock will be diluted;
- if holders of preferred stock are entitled to preferred dividends or
liquidation preferences, the amount of earnings and assets available for
distribution to holders of our common stock may be reduced;
- our issuance of preferred stock could decrease the market price of our
common stock; and
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- our issuance of preferred stock may have the effect of delaying or
preventing a change in control.
THIS PROSPECTUS CONTAINS FORWARD-LOOKING STATEMENTS CONCERNING FUTURE EVENTS OR
PERFORMANCE, ACTUAL RESULTS MAY DIFFER MATERIALLY.
We make "forward-looking statements" throughout this prospectus. Whenever you
read a statement that is not simply a statement of historical fact (such as when
we describe what we "believe," "estimate," "intend," "plan," "expect" or
"anticipate" will occur, and other similar statements), you must remember that
our expectations may not be correct, even though we believe they are reasonable.
We do not guarantee that the transactions and events described in this
prospectus will happen as described (or that they will happen at all). You
should read this prospectus completely and with the understanding that actual
future results may be materially different from what we expect. We will not
update these forward-looking statements, even though our situation may change in
the future. Whether actual results will conform with our expectations and
predictions is subject to a number of risks and uncertainties. The above risk
factors describe some, but not all, of the factors that could cause these
differences.
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DESCRIPTION OF THE BUSINESS
We are engaged principally in the design, development and manufacture of safety
medical products used by healthcare professionals. Our initial products have
been safety blood collection needles and related accessory products that are
marketed under the Punctur-Guard(R) and Drop-It(R) trade names.
The safety blood collection needle utilizes a patented technology that greatly
reduces the risk of accidental needlesticks by internally blunting the needle
before removal from the patient. Our primary focus has been the design,
development, testing and evaluation of our safety blood collection needle, and
the design and development of the molds, machinery and systems used to
manufacture the blood collection needle. More recently, we have focused our
efforts on developing strategic partnerships with major healthcare companies in
order to assist with the development and expansion of our product lines.
The Bio-Plexus Punctur-Guard(R) blood collection needle is a patented safety
needle which reduces the risk of accidental needle sticks through a
self-blunting mechanism. The Punctur-Guard(R) needle is the only safety needle
on the market which is activated before its removal from the patient,
eliminating exposure to a contaminated needle. We manufacture and sell three
varieties of safety blood collection needles, two types of needle holders and a
needle disposal container. The blood collection needle is similar in appearance,
size, performance and general operation to standard blood collection needles,
and works with substantially all standard blood collection accessories. The
blood collection needle assembly consists of a mechanically activated, hollow,
internal cannula with a blunt end, called a blunting member, placed within a
blood collection needle. The blunting member advances through the needle by
applied mechanical pressure. When the needle is inserted into the patient, the
blunting member is in its retracted position. Before removing the needle from
the patient, the operator applies slight additional forward force to the blood
collection tube, allowing the blunting member to advance forward and lock into
place beyond the needle's tip. The blunting member does not cause any additional
patient discomfort, and because it is hollow, fluids flow through the needle in
the same manner as through standard blood collection needles.
In addition to our blood collection needles, we manufacture needle holders and
needle disposal containers. The Drop-It(R) product line consists of the
Drop-It(R) Quick Release Needle Holder and Drop-It(R) Needle Disposal Container.
These products are designed to work in conjunction with the blood collection
needle to increase the ease-of-use for the healthcare professional. The needle
holder features simple one-handed disposal of a needle, with a push button for
quick release. The needle can also be automatically released when used with the
Drop-It(R) Needle Disposal Container. The Drop-It(R) Needle Disposal Container
is a one-quart, tray-mountable container. The container offers fast, one handed
needle disposal with push button or automatic release when used with a
Drop-It(R) Quick Release Needle Holder. It offers temporary and permanent
locking tabs, is injection molded for uniform thickness, and meets the
Occupational Safety and Health Administration standards for needle disposal
containers. We have also developed and manufacture a standard needle holder
which can be used with both Punctur-Guard(R) and standard blood collection
needles.
RECENT DEVELOPMENTS
In the table below, we provide you with summary historical financial data of
Bio-Plexus, Inc. We have prepared this information using the consolidated
financial statements of Bio-Plexus, Inc. for the three years ended December 31,
1998 and the six-month periods ended June 30, 1998 and 1999. The financial
statements for the three years ended December 31, 1998 have been audited. The
financial statements for the six-month periods ended June 30, 1998 and 1999 have
not been audited.
When you read this summary historical financial data, it is important that you
read it along with the historical financial statements and related notes in our
annual and interim financial statements included and incorporated by reference
in this prospectus, as well as the section titled "Management's Discussion and
Analysis of Financial Condition and Results of Operations."
9
<PAGE> 13
<TABLE>
<CAPTION>
SIX MONTHS ENDED
FOR THE YEAR ENDED DECEMBER 31, JUNE 30,
------------------------------- ------------------
1996 1997 1998 1998 1999
-------- -------- ------- ------- -------
(DOLLARS IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
Statement of Operations Data:
Total revenue.......................... $ 2,743 $ 5,042 $ 9,307 $ 3,881 $ 3,747
-------- -------- ------- ------- -------
Costs and expenses:
Research and development............. 1,511 1,044 463 219 598]
Other operating and engineering
costs............................. 5,656 6,024 6,905 2,276 1,563
Selling, general and
administrative.................... 6,949 6,500 4,310 2,431 2,261
-------- -------- ------- ------- -------
Total operating costs and expenses..... 14,116 13,568 11,678 4,926 4,422
Financing expenses, net................ 1,497 3,786 589 303 361
-------- -------- ------- ------- -------
Net loss before extraordinary items.... $(12,870) $(12,312) $(2,960) $(1,348) $(1,036)
Less: Imputed dividend on preferred
stock............................ -- (500) -- -- --
-------- -------- ------- ------- -------
Net loss applicable to common stock.... $(12,870) $(12,812) $(2,960) $(1,348) $(1,036)
======== ======== ======= ======= =======
Basic and diluted net loss per common
share................................ $ (1.89) $ (1.37) $ (0.24) $ (0.11) $ (0.08)
======== ======== ======= ======= =======
Weighted average common shares
outstanding.......................... 6,816 9,321 12,264 12,150 13,398
======== ======== ======= ======= =======
</TABLE>
<TABLE>
<CAPTION>
JUNE 30, 1999
DECEMBER 31, ---------------------
1998 ACTUAL AS ADJUSTED
------------ ------ -----------
(IN THOUSANDS)
<S> <C> <C> <C>
Balance Sheet Data:
Working capital (deficiency)............................... $(754) $2,126 2,126
Total assets............................................... 9,152 9,559 8,910
Long-term debt............................................. 2,403 2,365 1,702
Total shareholders' equity (deficit)....................... 2,477 5,297 5,311
</TABLE>
The June 30, 1999 amounts reflect the receipt of net proceeds from this offering
and the recording of debt and related offering costs. The "as adjusted" amounts
reflect the conversion of debt to common shares and the elimination of the
related offering costs.
DESCRIPTION OF THE CAPITAL STOCK
Our certificate of incorporation authorizes us to issue, without stockholder
approval, 3,000,000 shares of preferred stock, without par value, and up to
25,000,000 shares of our common stock, without par value. As of the date of this
prospectus, no shares of preferred stock are outstanding. After completion of
this offering, 17,041,998 shares of common stock will be issued and outstanding,
assuming we do not issue additional shares of capital stock before the
completion of the offering. The outstanding shares of common stock are, and the
shares offered in this offering, when issued, will be fully paid and
non-assessable.
COMMON STOCK
Holders of common stock are entitled to one vote for each share held by them on
all matters submitted to the stockholders for action. Holders of common stock
have a right to vote as a separate class on:
- a merger or consolidation of Bio-Plexus,
- a sale of all or substantially all of our assets, and
- amendments to the certificate of incorporation which affect rights and
preferences of the class.
On all other matters including, among others, the election of directors, all
stockholders vote together as a single class. Holders do not have preemptive
rights, so we may issue additional shares that may reduce each holder's voting
and financial interest. Cumulative voting does not apply in the election of our
10
<PAGE> 14
directors, so holders of a simple majority of the shares voted at a meeting at
which a quorum is present can elect all of the directors to be elected at that
meeting. The right of holders of our common stock to receive dividends may be
restricted by the terms of any shares of our preferred stock issued in the
future. If we were to liquidate, dissolve, or wind up our affairs, holders of
common stock would share proportionally in our assets that remain after payment
of all of our debts and obligations and after any liquidation payments to
holders of preferred stock.
PREFERRED STOCK
We are authorized to issue shares of preferred stock in one or more series,
which can have rights senior to those of our common stock. Our Board of
Directors may determine the preferences, limitations and relative rights of the
class of preferred stock and any series of the class, which may include:
- number of shares;
- powers;
- designation;
- dividend rights;
- dividend rate;
- conversion rights;
- voting rights;
- rights and terms of redemption (including sinking fund provisions);
- redemption price or prices;
- liquidation and other preferences; and
- other special rights.
DETERMINATION OF OFFERING PRICE
The offering price of the shares will be determined at the time of sale by the
selling stockholders. The selling stockholders have advised us that they may
offer the shares of common stock registered under this prospectus to purchasers
from time to time at:
- fixed prices that may be changed;
- market prices prevailing at the time of the resale;
- prices related to those market prices; or
- negotiated prices.
USE OF PROCEEDS
The proceeds from the sale of the shares are solely for the account of the
selling stockholders. Accordingly, we will not receive any proceeds from the
sale of the shares. However, we will receive cash consideration if any of the
selling stockholders exercises its respective warrant. We intend to use any cash
proceeds from exercise of the warrants for working capital purposes. We will pay
all of the costs of the registration of the shares of common stock registered
under this prospectus (other than selling commissions). See "Selling
Stockholders" for additional information.
11
<PAGE> 15
DILUTION
Upon completion of this offering, purchasers in this offering may incur
substantial immediate dilution in the net book value per share of their common
stock, compared to the purchase price of their common stock. Furthermore, if all
of the shares registered by this prospectus are sold, the dilution could be
significantly greater.
We had a net tangible book value of $4,355,000 or $.32 per share of common
stock, as of June 30, 1999. Net tangible book value is equal to total tangible
assets, less total liabilities, less redeemable common stock warrants, divided
by the number of shares of common stock outstanding. The pro forma net tangible
book value would be $6,855,000 or $.42 per share after giving effect to the
financing transaction. This amount represents an immediate increase in the net
tangible book value of $.10 per share to existing shareholders, and an immediate
dilution of net tangible book value of $3.58 per share to purchasers of common
stock in the offering. The following table illustrates this dilution per share
(excluding the effects of common stock equivalents such as in the money warrants
and options):
<TABLE>
<CAPTION>
FAIR MARKET VALUE
AUGUST 20, 1999
-----------------
<S> <C> <C>
Assumed public offering price per share..................... $4.00
Net tangible book value per share at June 30, 1999.......... $0.32
Increase attributable to sale of shares offered by this
prospectus................................................ $0.10
-----
Adjusted tangible net book per share after the offering..... 0.42
-----
Dilution per share to investors purchasing the shares
offered by this prospectus................................ $3.58
=====
</TABLE>
The above discussion and table exclude as of June 30, 1999: (i) 1,499,830 shares
of common stock issuable at a weighted average exercise price of $5.07 per share
upon the exercise of warrants outstanding; (ii) 546,650 shares of common stock
issuable upon the exercise of stock options outstanding under our 1991 Long-Term
Incentive Plan as amended, of which options to purchase 499,233 shares of common
stock are currently exercisable at a weighted average price of $2.86 per share;
and (iii) 35,000 shares of common stock reserved for issuance upon the exercise
of stock options outstanding under our 1995 Non-Employee Directors' Stock Option
Plan of which options to purchase 26,000 shares of common stock are currently
exercisable at a weighted average price of $7.63.
SELLING STOCKHOLDERS
We are registering all 3,500,000 shares covered by this prospectus on behalf of
the selling stockholders named in the table below. We issued all of the shares
to the selling stockholders in a private placement. On of April 21, 1999, we
negotiated a private placement offering of up to $4,500,000 aggregate principal
amount 6% Convertible Debentures due 2004. Under a subscription agreement dated
as of April 27, 1998, the selling stockholders agreed to initially purchase
$2,500,000 aggregate principal amount of the debentures.
The debentures accrue interest at the rate of 6.0% per annum, payable quarterly
in arrears. The interest is payable either in cash or in the issuance of
additional debentures, at our option. The debentures are convertible at any time
at the option of the selling stockholders into shares of our common stock at an
initial conversion rate of $3.06 per share. The debentures may be wholly or
partially redeemed at our option for an amount not to exceed 130% of the face
value, plus accrued and unpaid interest, at any time. Bio-Plexus and the selling
stockholders have limited put and call options, respectively, for the additional
$2,000,000 of debentures. The private placement also included the sale by us of
a warrant to purchase 500,000 shares of common stock at an exercise price of
$3.38.
We entered into a registration rights agreement with the selling stockholders in
connection with the sale of the debentures and warrants. In accordance with that
agreement, we agreed to register with the SEC the resale by the selling
stockholders of the shares of common stock underlying the debentures and
warrants.
12
<PAGE> 16
We have also agreed to prepare and file those amendments and supplements to the
registration statement as may be necessary to keep the registration statement
effective until the earlier of:
- three years from the effective date;
- the date on which the shares covered by this prospectus have been sold;
or
- the date on which the shares may be sold without restriction in
accordance with Rule 144 of the Securities Act.
The actual number of shares to be issued upon conversion of the debentures or as
interest on the debentures cannot be calculated until conversion of the
debentures. This is because these numbers are based on a conversion price that
is equal to the lesser of:
- a fixed conversion price of initially $3.06 per share and subject to
adjustments, or
- a floating conversion price calculated based on the average of the five
lowest closing prices during the thirty-five trading days preceding the
date of conversion.
The number of shares to be issued upon conversion varies inversely with the
market price of our common stock. As our common stock price goes down, holders
of the debentures are entitled to convert the debentures into a greater number
of shares. There are also several limitations on the number of shares we are
required to issue upon conversion of the debentures:
- We are not required to issue more than a number of shares of common stock
equal to 19.99% of the number of shares of common stock outstanding on
the date the debentures were issued unless a greater amount is approved
by our stockholders or Nasdaq.
- No holder of debentures covered by this prospectus can convert the
debentures if the conversion would cause that holder to beneficially own
more than 5% of our common stock (other than shares which are considered
beneficially owned through the conversion right in the debentures owned
by the selling stockholder, except upon 61 days prior notice to us).
- For the first 30,000 shares of our common stock traded on Nasdaq on any
conversion date, the holders of the debentures may only convert the
debentures into shares of common stock equal to 25% of our trading volume
on Nasdaq.
For purposes of estimating the number of shares of common stock included in this
prospectus, we have determined by agreement with the selling stockholders to
register that number of shares which represent 200% of the shares to be issued
upon conversion of the debentures and exercise of the warrants on the closing
date of the April offering (April 21, 1999) or the date the registration
statement was initially filed with the SEC (May 28, 1999), whichever produces
the greatest number of securities to be registered. We calculated the number of
shares to be issued upon conversion of the debentures based on an assumed
conversion price of $2.00 per share, which represents the floating conversion
price in effect on April 21, 1999.
Based on these calculations, we are registering 3,500,000 shares, which include:
- 816,993 shares of common stock to be issued upon the conversion of
$2,500,000 original aggregate principal amount of the debentures;
- an additional estimated number of shares of common stock that may be
issued as interest accrued on the debentures;
- 500,000 shares of common stock to be issued upon the exercise of the
warrants; and
- an estimated number of additional shares of common stock that may be
issued as a result of adjustments to the debentures and warrants in
amounts agreed upon between us and the selling stockholders.
The actual number of shares of common stock to be issued upon conversion of the
debentures could be materially more or less than the number of shares
registered. However, if our good faith estimate proves to be too low, the
additional shares must be registered with the SEC on a new registration
statement.
13
<PAGE> 17
The following table sets forth information about the selling stockholders, the
shares of common stock beneficially owned by the selling stockholders as of May
28, 1999, and the shares of common stock to be issued upon conversion of the
debentures and exercise of the warrants. For purposes of this table, we have
assumed conversion of all of the debentures, exercise of all the warrants, sale
of all of the shares of common stock registered under this prospectus, and no
shares held by the selling stockholders after this offering. Except as otherwise
disclosed in this prospectus, the selling stockholders neither have nor within
the past three years had any position, office or other material relationship
with us or any of our affiliates. We cannot estimate the number of shares that
will be held by the selling shareholders after those sales because the selling
stockholders may offer all or a portion of the shares of common stock registered
under this prospectus.
<TABLE>
<CAPTION>
NUMBER OF SHARES NUMBER OF SHARES
OWNED BEFORE PERCENTAGE OFFERED BY THIS
NAME OF SELLING STOCKHOLDER(1) OFFERING OF CLASS PROSPECTUS
- ------------------------------ ---------------- ---------- ----------------
<S> <C> <C> <C>
Leonardo, L.P.................................... 368,758 2.7% 980,000
c/o Angelo Gordon & Co., L.P.(2)
245 Park Avenue, 26th Floor
New York, NY 10167
Attn: Gary Wolf
AG Super Fund International Partners, L.P........ 52,680 * 140,000
c/o Angelo Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Attn: Gary Wolf
Ramius Fund, Ltd................................. 131,699 1% 350,000
c/o Angelo Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Attn: Gary Wolf
GAM Arbitrage Investments, Inc................... 52,680 * 140,000
c/o Angelo Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Attn: Gary Wolf
Raphael, L.P..................................... 52,680 * 140,000
c/o Angelo Gordon & Co., L.P.
245 Park Avenue, 26th Floor
New York, NY 10167
Attn: Gary Wolf
AGR Halifax Fund, Ltd............................ 658,497 4.6% 1,750,000
c/o Ramius Capital Group, LLC
757 Third Avenue, 27th Floor
New York, NY 10017
Attn: Jeffrey M. Solomon
</TABLE>
- ---------------
* Indicates less than 1 percent.
(1) These selling stockholders are affiliated with broker-dealers. However,
their shares were purchased by the named investment funds and not by their
affiliated broker-dealers. The securities were purchased for investment by
the identified funds and not with a view to a distribution.
(2) Angelo, Gordon & Co., L.P. is the trading manager of Leonardo, L.P., GAM
Arbitrage Investments, Inc., AG Super Fund International Partners, L.P.,
Raphael, L.P. and Ramius, L.P. and consequently has voting control and
investment discretion over securities held by these entities.
14
<PAGE> 18
PLAN OF DISTRIBUTION
The selling stockholders have advised us that they may offer the shares of
common stock registered under this prospectus to purchasers from time to time:
- in transactions in the Nasdaq SmallCap Market System;
- in negotiated transactions; or
- by a combination of these methods.
As of the date of this prospectus, the selling stockholders have not entered
into any underwriting arrangements. The selling stockholders may sell the shares
registered under this prospectus to or through:
- ordinary brokers' transactions;
- transactions involving cross or block trades or otherwise on the Nasdaq
SmallCap Market;
- purchases by brokers, dealers or underwriters as principal and resale by
those purchasers for their own accounts under this prospectus;
- "at the market" to or through market makers or into an existing market
for our common stock;
- in other ways not involving market makers or established trading markets,
including direct sales to purchasers or sales which take place through
agents;
- through transactions in options, swaps or other derivatives (whether
exchange-listed or otherwise);
- in privately negotiated transactions;
- to cover short sales; or
- any combination of the foregoing.
From time to time, one or more of the selling stockholders may pledge,
hypothecate or grant a security interest in some or all of the shares of common
stock registered under this prospectus. The pledgees, secured parties or persons
to whom those shares have been hypothecated will, upon foreclosure in the event
of default, be considered selling stockholders. Once transferred, pledged,
donated or assigned by the selling stockholders, the number of shares of common
stock registered under this prospectus will decrease. The plan of distribution
for shares sold under this prospectus will otherwise remain unchanged, except
that the transferees, pledgees, donees or other successors will be selling
stockholders under this prospectus. In addition, a selling stockholder may, from
time to time, sell short shares of common stock. In those instances, this
prospectus may be delivered in connection with covering those short sales.
A selling stockholder may enter into hedging transactions with broker-dealers.
Broker-dealers may engage in short sales of the common stock to hedge the
positions. A selling stockholder also may enter into option or other
transactions with broker-dealers that involve the delivery of the shares of
common stock registered under this prospectus to the broker-dealers, who then
may resell or otherwise transfer these shares.
Broker-dealers, underwriters or agents participating in the distribution of the
shares of common stock registered under this prospectus as agents may receive
compensation. That compensation may be in the form of commissions, discounts or
concessions from the selling stockholders and purchasers of the common stock for
whom the broker-dealers may act as agent, or to whom they may sell as principal,
or both. Compensation as to a particular broker-dealer may be less than or in
excess of customary commissions. The selling stockholders and any broker-dealers
who act in connection with the sale of the shares of common stock under this
prospectus may be considered "underwriters" within the meaning of the Securities
Act of 1933. Any commissions they receive and proceeds of any sale of the shares
of common stock may be considered underwriting discounts and commissions under
the Securities Act. Neither we nor any of the selling stockholders can presently
estimate the amount of this compensation. We know of no existing arrangements
between any of the selling stockholders, any other shareholder, broker, dealer,
underwriter or agent relating to the sale or distribution of the shares
registered under this prospectus.
15
<PAGE> 19
We will pay substantially all of the expenses relating to the registration,
offer and sale of the shares of common stock registered under this prospectus to
the public other than commissions or discounts of underwriters, broker-dealers
or agents. We also have agreed to indemnify the selling stockholders and related
persons against any losses, claims, damages or liabilities under the Securities
Act or otherwise that arise out of, or are based upon, any untrue or alleged
untrue statement of a material fact or the omission or alleged omission in
stating a material fact under this registration statement or prospectus. To the
extent that indemnification for liabilities arising under the Securities Act may
be permitted to our directors, officers and controlling persons, we have been
advised that, in the opinion of the SEC, this indemnification is against public
policy as expressed in the Securities Act and is therefore, unenforceable.
LEGAL MATTERS
The validity of the securities offered by this prospectus have been passed upon
for Bio-Plexus by Pepe & Hazard LLP, Hartford, Connecticut.
EXPERTS
The audited financial statements included in this prospectus have been audited
by various independent accountants. The firms and periods covered by these
audits are indicated in the individual accountants' reports. These financial
statements have been so included in reliance on the reports of the various
independent accountants given on the authority of those firms as experts in
auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are required to follow the reporting requirements of the Securities Exchange
Act of 1934. To comply with these requirements, we file a number of reports,
including annual and quarterly reports, proxy statements, information statements
and other information with the SEC. You may inspect and copy any of this
information that we have filed with the SEC at the public reference facilities
maintained by the SEC at 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, and at the SEC's regional offices located at 7 World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 W. Madison Street, Suite
1400, Chicago, IL 60661-2511. You may obtain information on the operation of the
public reference room by calling the Commission at 1-800-SEC-0330. You also may
obtain copies of the material at prescribed rates from the Public Reference
Section of the SEC at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549. You also may inspect those reports, proxy statements, information
statements and other information concerning us at the offices of The Nasdaq
Stock Market, Inc. at 1735 K Street, N.W., Washington, D.C. 20006. You also may
access the materials that we file electronically with the SEC at the SEC's
website (http://www.sec.gov). Our website is http://www.bio-plexus.com. None of
the material included on our website forms part of this prospectus.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered
to be part of this prospectus and any later information we file with the SEC
will automatically update and supersede this information. We incorporate by
reference in this prospectus the documents listed below and any future filings
we make with the SEC under Section 13(a), 14 or 15(d) of the Securities Exchange
Act of 1934 until our offering is completed and encourage you to read the
following documents that we have filed with the SEC (File No. 0-24128) in
accordance with the requirements of the Securities Exchange Act of 1934:
- Our Annual Report on Form 10-K for the year ended December 31, 1998;
- Our Quarterly Report on Form 10-Q for the quarter ended March 31, 1999;
16
<PAGE> 20
- Our Quarterly Report on Form 10-Q for the quarter ended June 30, 1999;
- Our Current Report on Form 8-K dated April 30, 1999;
- Our definitive Proxy Statement on Schedule 14-A filed on June 18, 1999;
The reports and other documents that we file after the date of this prospectus
will update and supersede the information in this prospectus.
You should rely only on the information provided or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with different
information. The selling stockholders are not making an offer of these
securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus is accurate as of any date other than
the date on the front of this document.
You may request a copy of these documents (excluding exhibits unless
specifically incorporated by reference in those documents), at no cost, by
writing or telephoning us at 129 Reservoir Road, Vernon, Connecticut 06066 (860)
870-6112.
17
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated cumulative expenses of this registration of shares of common stock
for resale by the selling stockholders, all of which are to be paid by the
registrant in connection with the issuance and distribution of the shares being
registered, are estimated as follows:
<TABLE>
<CAPTION>
AMOUNT
-------
<S> <C>
Registration Fee -- SEC..................................... $ 5,595(1)
Nasdaq SmallCap Market Listing Fee.......................... 7,500
Accounting Fees and Expenses................................ 10,000*
Legal Fees and Expenses (including Blue Sky)................ 20,000*
Printing and engraving expenses............................. 5,000*
Miscellaneous............................................... 2,000*
-------
Total....................................................... $50,095
</TABLE>
- ---------------
* Estimated
(1) Registration fee paid upon the initial filing of this registration
statement.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
We maintain directors' and officers' liability insurance with policy limits
which are reasonable and customary for our industry. The policy covers losses
caused by the directors and officers in their capacity as directors and officers
arising from, among other things:
- claims of breach of duty,
- neglect,
- error,
- alleged misstatement,
- misleading statement, and
- omission.
Payment for loss would be made to or on our behalf where we are required or
permitted to indemnify directors or officers for covered losses in accordance
with:
- statutory or common law,
- our certificate of incorporation,
- our bylaws, or
- by agreement.
The policy provides for retentions at various limits.
We incorporate by reference Sections 33-771, 33-772, 33-774 and 33-776 of the
Connecticut Business Corporation Act as follows:
CONNECTICUT BUSINESS CORPORATION ACT SECTION 33-771 PROVIDES IN PART:
(a) Except as provided in subsection (d) of this section, a corporation may
indemnify an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if: (1) He conducted
himself in good faith; and (2) he reasonably believed (A) in the case of
conduct in his official capacity with the corporation, that his conduct was
in its best interests,
II-1
<PAGE> 22
and (B) in all other cases, that his conduct was at least not opposed to
its best interests; and (3) in the case of any criminal proceeding, he had
no reasonable cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he reasonably believed to be in the interests of the participants
in and beneficiaries of the plan is conduct that satisfies the requirement
of subparagraph (B) of subdivision (2) of subsection (a) of this section.
(c) The termination of a proceeding by judgment, order, settlement or
conviction or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section: (1) In
connection with a proceeding by or in the right of the corporation in which
the director was adjudged liable to the corporation; or (2) in connection
with any other proceeding charging improper personal benefit to him,
whether or not involving action in his official capacity, in which he was
adjudged liable on the basis that personal benefit was improperly received
by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to reasonable
expenses incurred in connection with the proceeding.
CONNECTICUT BUSINESS CORPORATION ACT SECTION 33-772 PROVIDES:
Unless limited by its certificate of incorporation, a corporation shall
indemnify a director who was wholly successful, on the merits or otherwise, in
the defense of any proceeding to which he was a party because he is or was a
director of the corporation against reasonable expenses incurred by him in
connection with the proceeding.
CONNECTICUT BUSINESS CORPORATION ACT SECTION 33-774 PROVIDES:
Unless a corporation's certificate of incorporation provides otherwise, a
director of the corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving any
notice the court considers necessary may order indemnification if it determines:
(1) The director is entitled to mandatory indemnification under section 33-772,
in which case the court shall also order the corporation to pay the director's
reasonable expenses incurred to obtain court-ordered indemnification; or (2) the
director is fairly and reasonable entitled to indemnification in view of all the
relevant circumstances, whether or not he met the standard of conduct set forth
in section 33-771 or was adjudged liable as described in subsection (d) of said
section, but if he was adjudged so liable his indemnification is limited to
reasonable expenses incurred.
CONNECTICUT BUSINESS CORPORATION ACT SECTION 33-776 PROVIDES IN PART:
Unless a corporation's certificate of incorporation provides otherwise:
(1) An officer of the corporation who is not a director is entitled to
mandatory indemnification under section 33-772, and is entitled to apply
for court-ordered indemnification under section 33-774, in each case to the
same extent as a director.
(3) Notwithstanding subdivision (4) of this section, a corporation may also
indemnify and advance expenses to an officer, employee or agent who is not
a director to the extent, consistent with public policy, that may be
provided by contract, its certificate of incorporation, bylaws, or general
or specific action of its board of directors, each of which may delegate to
its general counsel or other specified officer or officers the ability to
authorize such indemnification and the responsibility to determine whether
any conditions to such indemnification or advance of expenses have been
established.
ARTICLE IX OF OUR BYLAWS PROVIDES:
The Corporation shall indemnify shareholders, directors, officers, employees and
agents of the Corporation to the maximum extent permitted by the Stock
Corporation Act of the State of Connecticut. Expenses of a party which may be
indemnifiable under the Stock Corporation Act incurred in defending a proceeding
shall be paid by the Corporation in advance of the final disposition of such
proceeding as authorized by the
II-2
<PAGE> 23
Board of Directors upon agreement of the eligible party to repay such amount if
he is later found not entitled to be indemnified by the Corporation under the
Stock Corporation Act.
Effective January 1, 1997, the Stock Corporation Act of the State of Connecticut
was been repealed, superseded by the Business Corporation Act of the State of
Connecticut.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
See Exhibit Index included immediately preceding the Exhibits to this
registration statement, which is incorporated in this prospectus by reference.
ITEM 17. UNDERTAKINGS.
(a) Bio-Plexus hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of this 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 this
registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration statement or any
material change to such information in this registration statement;
provided, however, that paragraphs (1)(i) and (1) (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by us pursuant to Section
13 or Section 15(d) of the Securities Exchange Act of 1934, as amended that
are incorporated by reference in this registration statement.
(2) That, for the purposes of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
(b) Bio-Plexus hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of our annual report pursuant to Section
13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of any
employer benefit plan's annual report pursuant to Section 15(d) of the Exchange
Act) that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein and the offering of such securities at the time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of Bio-Plexus
pursuant to the indemnification provisions described herein, or otherwise,
Bio-Plexus has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by Bio-Plexus
of expenses incurred or paid by a director, officer or controlling person of
Bio-Plexus in the successful defense of any action, suit or proceedings) is
asserted by such director, officer or controlling person in connection with the
securities being registered, Bio-Plexus will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-3
<PAGE> 24
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Bio-Plexus certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing this Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in Vernon,
Connecticut on the 24th day of August 1999.
BIO-PLEXUS, INC.
By: /s/ RICHARD L. HIGGINS
------------------------------------
Richard L. Higgins
President and
Chief 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.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ RICHARD L. HIGGINS President, Chief Executive Officer August 24, 1999
- ------------------------------------------------ and Director (Principal Executive
Richard L. Higgins Officer)
/s/ KIMBERLEY A. CADY Vice President and Chief Financial August 24, 1999
- ------------------------------------------------ Officer (Principal Financial
Kimberley A. Cady Officer and Principal Accounting
Officer)
/s/ DAVID HIMICK Director August 24, 1999
- ------------------------------------------------
David Himick
/s/ HERMAN GROSS Director August 24, 1999
- ------------------------------------------------
Herman Gross
/s/ RICHARD RIBAKOVE Director August 24, 1999
- ------------------------------------------------
Richard Ribakove
</TABLE>
II-4
<PAGE> 25
EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<S> <C>
1.1 Form of Underwriting Agreement between Advest, Inc. and
Bio-Plexus(1)
1.2 Form of Advest, Inc. Warrant(1)
1.3 Form of Advest, Inc. Registration Rights Agreement(1)
1.4 Form of Underwriting Agreement among Advest, Inc. as
representative of the several underwriters named in the
agreement and Bio-Plexus(2)
3.1 Certificate of Incorporation of Bio-Plexus, as amended(3)
3.2 Bylaws of Bio-Plexus, as amended(4)
4.1 Loan Agreement, dated January 7, 1992, between Bio-Plexus
and Connecticut Innovations, Inc.(1)
4.2 Loan Agreement dated July 27, 1993, between Bio-Plexus and
the Connecticut Development Authority(1)
4.3 Form of Unsecured Term Notes with Detachable Warrants to
Purchase Common Stock(5)
4.4 Loan Agreement, dated March 7, 1995, between Bio-Plexus and
the Connecticut Development Authority(6)
4.4a Letter agreement dated March 31, 1997 between Bio-Plexus and
Connecticut Development Authority(7)
4.5 Promissory Note, dated October 28, 1994, between Bio-Plexus
and Victor and Margaret DeMattia(6)
4.6 Offshore Convertible Securities Subscription Agreement dated
January 30, 1997 between Bio-Plexus and Shepherd Investments
International Ltd., as amended by Letter agreement dated
March 25, 1997, and as further amended by Letter agreement
dated April 16, 1997(7)
4.6a Letter agreement between Bio-Plexus and Ronald A. Haverl and
Carl R. Sahi regarding voting of Class A Common Stock(8)
5.1 Opinion of Pepe & Hazard LLP, Hartford, Connecticut(12)
10.1 Lease, dated March 7, 1989, between Bio-Plexus and T&S
Limited Partnership, as amended(1)
10.2 Royalty Agreement, dated November 6, 1989, between
Bio-Plexus and Connecticut Innovations, Inc., as amended(1)
10.3 Master Lease Agreement, dated April 30, 1993, between
Bio-Plexus and Aberlyn Capital Management and its Affiliate,
Aberlyn(1)
10.4 Purchase and Sale Agreement, as amended, for 129 Reservoir
Road, Vernon, Connecticut, dated October 28, 1994, between
Bio-Plexus and Victor and Margaret DeMattia(6)
10.5 Lease, dated March 11, 1994, between Bio-Plexus and Thomas
D. Buccino d/b/a The Mill Works(1)
10.6 Marketing and Distribution Agreement dated March 16, 1995,
between Bio-Plexus and Allegiance(9)
10.7 1991 Long-Term Incentive Plan(9)
10.8 Stock Warrant granted by Bio-Plexus to Ronald A. Haverl(9)
10.9 Stock Warrant granted by Bio-Plexus to Carl R. Sahi(9)
10.10 Stock Warrant granted by Bio-Plexus to Ronald A. Haverl(9)
10.11 Stock Warrant granted by Bio-Plexus to Carl R. Sahi(9)
10.12 Master Equipment Lease Agreement dated as of March 8, 1995,
between Bio-Plexus and Financing for Science International,
Inc.(10)
10.13 1995 Non-Employee Directors' Stock Option Plan(10)
</TABLE>
II-5
<PAGE> 26
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<S> <C>
10.14 Note and Warrant Purchase Agreement, Form of Private
Placement Note, Security Agreement, and Form of Warrant(10)
10.15 Letter Agreement with Aberlyn Capital Management Limited
Partnership(10)
10.16 Employment Agreement dated January 13, 1997 between
Bio-Plexus and Lucio Improta(7)
10.17 Term Sheet dated August 1, 1997 describing arrangement
between Bio-Plexus and Ronald Haverl(11)
10.18 Development and License Agreement dated January 28, 1997 by
and between Bio-Plexus and Johnson & Johnson Medical,
Inc.(3)
10.19 Supply Agreement dated January 28, 1997 by and between
Bio-Plexus and Johnson & Johnson Medical, Inc.(3)
10.20 Term Promissory Note issued to Carl R. Sahi(3)
10.21 Warrant for shares of common stock issued to Carl R. Sahi(3)
10.22 Subscription Agreement by and among the Company and the
Selling Stockholders(12)
10.23 Form of Debenture granted by Bio-Plexus to the Selling
Stockholders(12)
10.24 Form of Warrant granted by Bio-Plexus to the Selling
Stockholders(12)
10.25 Registration Rights Agreement by and among Bio-Plexus and
the Selling Stockholders(12)
23.1 Consent of Mahoney Sabol & Company, LLP(12)
23.2 Consent of PricewaterhouseCoopers LLP(12)
23.3 Consent of Pepe & Hazard LLP (included in Exhibit 5.1)(12)
</TABLE>
- ---------------
(1) Incorporated by reference to the similarly described exhibits filed in
connection with the Registrant's registration statement on Form S-1 filed
on April 1, 1994 (File No. 33-77202).
(2) Incorporated by reference to the similarly described exhibit filed in
connection with Registrant's Amendment No. 2 to the registration statement
on Form S-1 filed on September 15, 1995 (File No. 33-95554).
(3) Incorporated by reference to the similarly described exhibits included with
Registrant's Quarterly Report on Form 10-Q for the quarter ended September
30, 1998 (File No. 0-24128).
(4) Incorporated by reference to the similarly described exhibit included with
the Registrant's Annual Report on Form 10-K filed on April 13, 1998 (File
No. 0-24128).
(5) Incorporated by reference to the similarly described exhibit filed in
connection with the Registrant's registration statement on Form S-1 filed
on April 1, 1994 (File No. 33-77202).
(6) Incorporated by reference to the similarly described exhibits included with
the Registrant's Annual Report on Form 10-K filed on March 30, 1995 (File
No. 0-24128).
(7) Incorporated by reference to the similarly described exhibits included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended on
March 31, 1997 (File No. 0-24128).
(8) Incorporated by reference to the similarly described exhibit included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended on
June 30, 1997 (File No. 0-24128).
(9) Incorporated by reference to the similarly described exhibits included with
the Registrant's Amendment No. 2 to Annual Report on Form 10-K filed on
June 30, 1995 (File No. 0-24128).
(10) Incorporated by reference to the similarly described exhibits included with
the Registrant's Quarterly Report on Form 10-Q for the quarter ended on
June 30, 1995 (File No. 0-24128).
(11) Incorporated by reference to the similarly described exhibit included with
the Registrant's Annual Report on Form 10-K/A filed on April 30, 1998 (File
No. 0-24128).
(12) Filed with this Registration Statement.
II-6
<PAGE> 1
EXHIBIT 5.1
[PEPE & HAZARD LLP LETTERHEAD]
August 24, 1999
Bio-Plexus, Inc.
129 Reservoir Road
Vernon, CT 06066
RE: Registration Statement on Form S-3 of Bio-Plexus, Inc.
(the"Company")
Ladies and Gentlemen:
We have acted as counsel to Bio-Plexus, Inc., a Connecticut corporation
(the "Company"), with respect to the offering by certain selling shareholders of
up to 3,500,000 shares (the "Shares") of the Common Stock of the Company,
without par value per share (the "Common Stock") under the Registration
Statement, filed by the Company under the Securities Act of 1933, as amended. As
such counsel, we have examined such corporate records, certificates and other
documents and have made such other factual and legal investigations as we have
deemed relevant and necessary as the basis for the opinions hereinafter
expressed. In such examinations, we have assumed the genuineness of all
signatures and the authenticity of all documents submitted to us as originals
and the conformity to original documents of all documents submitted to us as
conformed or photostatic copies. Unless otherwise defined herein, capitalized
terms shall have the meanings assigned to them in the Registration Statement.
Based on the foregoing, we are of the opinion that:
1. The shares of Common Stock initially issuable upon the exercise of
the warrants covered by the Registration Statement have been duly authorized and
reserved for issuance, and upon exercise of such warrants and the payment of the
exercise price in accordance with the terms of the warrants, such shares of
Common Stock will be validly issued, fully paid, and non-assessable by the
Company.
2. The shares of Common Stock initially issuable upon the conversion of
the each of the Debentures by the Company Stockholders have been duly authorized
and reserved for issuance, and upon issuance, each will be validly issued, fully
paid, and non-assessable by the Company.
<PAGE> 2
Bio-Plexus, Inc.
August 24, 1999
Page 2
3. The other shares of Common Stock covered by the Registration
Statement have been duly authorized, are fully paid, and non-assessable by the
Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
PEPE & HAZARD LLP
By: /s/ Walter W. Simmers
----------------------------
Walter W. Simmers
A Partner
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Shareholders of Bio-Plexus, Inc.
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 (No. 333-79671) of Bio-Plexus, Inc. of our report dated
March 5, 1999 appearing on page F-2 of the Annual Report on Form 10-K for the
year ended December 31, 1998, and to all references to our firm under the
caption "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ MAHONEY SABOL & COMPANY, LLP
Mahoney Sabol & Company, LLP
Hartford, Connecticut
August 24, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-3 of Bio-Plexus, Inc. of our report dated April 11, 1997
appearing on page F-3 of the Annual Report on Form 10-K, and to all references
to our firm under the caption "Experts" in the Prospectus, which is part of the
Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
PricewaterhouseCoopers LLP
Hartford, Connecticut
August 24, 1999
II-7
