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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 10, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ABAXIS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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CALIFORNIA 77-0213001
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
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3240 WHIPPLE ROAD
UNION CITY, CALIFORNIA 94587
(510) 441-6161
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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CLINTON S. SEVERSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER,
ABAXIS, INC.
3240 WHIPPLE ROAD
UNION CITY, CALIFORNIA 94587
(510) 441-6161
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPY TO:
ANDREW ZEIF, ESQ.
EDWARD H. BATTS, ESQ.
GRAY CARY WARE & FREIDENRICH LLP
400 HAMILTON AVENUE
PALO ALTO, CALIFORNIA 94301-1825
(650) 833-2000
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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 a 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: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering: [ ] __________
If this Form is a post-effective Act amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ] __________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM
TITLE OF SHARES AMOUNT TO AGGREGATE PRICE PER PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED BE REGISTERED(1) UNIT(2) AGGREGATE PRICE(2) REGISTRATION FEE(3)
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Common Stock (no par value)... 1,422,710 $5.94 $8,450,897.40 $2,112.72
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(1) Shares of Common Stock which may be offered pursuant to this Registration
Statement consisting of 943,270 shares issuable upon conversion of 6,578
shares of issued and outstanding Series D Convertible Preferred Stock and
478,900 shares issuable upon the exercise of warrants to purchase Common
Stock. In addition to the shares set forth in the table, the amount to be
registered includes an indeterminate number of shares issuable upon
conversion of or in respect of the Series D Convertible Preferred Stock, as
such number may be adjusted as a result of stock splits, stock dividends and
antidilution provisions in accordance with Rule 416.
(2) Estimated solely for the purpose of computing the registration fee and based
on the average high and low sales prices of the Common Stock of Abaxis, Inc.
as reported on the Nasdaq National Market on January 9, 2001.
(3) Computed pursuant to Rule 457(c) based on the average high and low sale
prices of the Common Stock of Abaxis, Inc. reported on the Nasdaq National
Market for January 9, 2001.
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 SUCH SECTION 8(a),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED.
THESE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SEC 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.
SUBJECT TO COMPLETION, DATED JANUARY 10, 2001
1,422,170 Shares
ABAXIS, INC.
Common Stock
The selling shareholders of Abaxis, Inc. listed on page 13 may offer and
resell up to 1,422,170 shares of Abaxis common stock under this prospectus, for
each of their own accounts. The number of shares the selling shareholders may
sell includes both shares of common stock that they may receive if they either
convert their shares of Series D Preferred Stock or exercise warrants to acquire
shares of our common stock. We will not receive any proceeds from such sales.
We issued shares of our Series D Preferred Stock in a private transaction
that closed on October 4, 2000 and November 17, 2000 to the selling
shareholders. We also concurrently issued warrants to purchase 328,900 shares of
our common stock to the same selling shareholders. In addition, we issued a
warrant to purchase 150,000 shares of our common stock in connection with the
sale of our Series D Preferred Stock.
Our common stock is quoted on the Nasdaq National Market under the symbol
"ABAX." On January 9, 2001, the last sale price of our common stock was $5.94.
INVESTING IN OUR COMMON STOCK INVOLVES A HIGH DEGREE OF RISK. PLEASE SEE
"RISK FACTORS" BEGINNING ON PAGE 2.
The shares have not been approved or disapproved by the SEC or any state
securities commission, nor have these organizations determined that this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is January 10, 2001
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TABLE OF CONTENTS
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PAGE
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ABOUT ABAXIS................................................ 1
RISK FACTORS................................................ 2
WHERE YOU CAN FIND MORE INFORMATION......................... 9
FORWARD-LOOKING INFORMATION................................. 10
USE OF PROCEEDS............................................. 10
SELLING SHAREHOLDERS........................................ 10
PLAN OF DISTRIBUTION........................................ 13
LEGAL MATTERS............................................... 13
EXPERTS..................................................... 13
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ABOUT ABAXIS
Abaxis, Inc. (the "Company"), incorporated in California in 1989, develops,
manufactures and markets portable blood analysis systems for use in any
patient-care setting to provide clinicians with rapid blood constituent
measurements. The Company's primary product is a system consisting of a compact
6.9 kilogram analyzer and a series of single-use plastic discs called reagent
discs containing all the chemicals required to perform a panel of up to 12
tests. The system can be operated with minimal training and performs multiple
routine tests on whole blood, serum or plasma using either venous or fingerstick
samples. The system provides test results in less than 15 minutes with the
precision and accuracy equivalent to a clinical laboratory analyzer. The Company
currently markets this system for veterinary use under the name VetScan(R) and
Vetscan HMT (DXS System) and in the human medical market under the name
Piccolo(R).
The Company has its primary operations and all of its employees in the
United States. Approximately 82%, 84% and 71% of the Company's revenues are from
the United States, 13%, 9% and 7% are from Europe, 5%, 7% and 22% are from Asia
and Latin America during fiscal year 2000, 1999 and 1998 respectively. The
Company offers its point-of-care blood chemistry analyzer system with a total of
19 test methods. The Company's repertoire of test methods includes albumin,
amylase, alkaline phosphates (ALP), alanine aminotransferase (ALT), aspartate
aminotransferase (AST), calcium, creatinine, creatine kinase (CK), glucose,
glutamyl transferase (GGT), potassium, total bilirubin, total cholesterol, urea
nitrogen (BUN), total protein, uric acid, thyroxine (T4), CO2 and sodium.
Seventeen of these tests are marketed for both human and veterinary markets.
Tests for uric acid are marketed only in the human market, and tests for T4 are
marketed exclusively in the veterinary market. The Company markets its reagent
products by configuring these 19 test methods in panels that are designed to
meet a variety of clinical diagnostic needs. The Company currently offers 5
multi-test reagent disc products in the human medical market and 6 reagent discs
in the veterinary market.
Our principal executive offices are located at 3240 Whipple Road, Union
City, California 94587. Our telephone number is (510) 441-6161.
VetScan and Piccolo are registered trademarks of Abaxis, Inc. Other
trademarks that we may refer to in this prospectus belong to their respective
owners.
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RISK FACTORS
This prospectus contains, or incorporates by reference, forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933, as
amended. These statements accurately reflect our current view with respect to
future events and financial performance. The future events that we describe in
these risk factors involve risks and uncertainties, among them are risks and
uncertainties related to:
1. the market acceptance of our products;
2. our continuing development of our products;
3. obtaining required Food and Drug Administration clearance and other
federal, state and local government approvals;
4. the manufacture and distribution of our products on a commercial scale;
5. general market conditions; and
6. competition.
When used in this prospectus, or in the documents incorporated by reference
herein, the words "anticipates," "believes," "expects," "intends," "plans,"
"future," and similar expressions identify forward-looking statements. Our
actual results could differ materially from those that we project in the
forward-looking statements as a result of factors that we have set forth
throughout this document as well as factors of which we are currently not aware.
Your investment in the shares being offered by the selling shareholders in
this prospectus involves a high degree of risk and should not be made by you if
you cannot afford the loss of your entire investment. In addition to the other
information in this prospectus, or incorporated in this prospectus by reference,
you should consider carefully the following risk factors before investing in the
common stock offered by the prospectus:
WE HAVE ONLY RECENTLY BECOME PROFITABLE AND WE HAVE LARGE CUMULATIVE NET LOSSES;
WE CANNOT ASSURE THAT WE WILL REMAIN PROFITABLE
Although we were formed in 1989, we have only been profitable since the
quarter ended December 31, 1999. We have incurred cumulative net losses of
approximately $60 million. We expect our losses to continue through at least the
first half of fiscal year 2000. Our ability to be consistently profitable will
depend, in part, on our ability to increase our sales volumes of our VetScan and
Piccolo products. Increasing our sales volume of our products will depend upon
our ability to:
1. continue to develop our products;
2. obtain necessary government approval for our products, including for
their use in the treatment of human beings;
3. increase our sales and marketing activities;
4. increase our manufacturing activities; and
5. effectively compete against current and future competitors.
We cannot assure you that we will be able to successfully increase our
sales volumes of our products to achieve profitability.
A NUMBER OF FACTORS EFFECT OUR PERIODIC RESULTS AND THUS WE ARE UNABLE TO
PREDICT SALES IN FUTURE QUARTERS
We are not able to accurately predict our sales in future quarters. In any
quarter, we derive a significant portion of our revenues from sales to a limited
number of distributors who resell our products to the ultimate user. While we
are better able to predict sales of our reagent discs, as we sell these discs
primarily for use with analyzers that we sold in prior periods, we generally are
unable to predict with much certainty sales of our analyzers, as we typically
sell our analyzers to new users. Accordingly, our sales in any one quarter are
not indicative of our sales in any future period. In addition, we generally
operate with limited order backlog, because we ship our products shortly after
we receive the orders from our
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customers. As a result, our product sales in any quarter are generally dependent
on orders that we receive and ship in that quarter. We base our expense levels,
which are to a large extent fixed, in part on our expectations as to future
revenues. We may be unable to reduce our spending in a timely manner to
compensate for any unexpected revenue shortfall. As a result, any such shortfall
would have an immediate, material and adverse impact our operating results and
financial condition. In addition, we have historically experienced a decrease in
our sales, especially in Europe, in our second and third quarters. Accordingly,
we believe that period to period comparisons of our results of operations are
not necessarily meaningful.
Our periodic operating results have varied in the past. In the future, we
expect our periodic operating results to vary significantly depending on, but
not limited to, a number of factors, including:
1. the level of competition in the markets in which we compete;
2. the size and timing of sales orders that we receive from our customers;
3. market acceptance of our current and future products;
4. new product announcements made by us or our competitors;
5. changes in our pricing structures or the pricing structures of our
competitors;
6. our ability to develop, introduce and market new products on a timely
basis;
7. the costs, and possible supply constraints, of the components that we
use to build our products;
8. our manufacturing capacities and our ability to increase the scale of
these capacities;
9. the mix of product sales between our analyzer and our reagent disc
products;
10. the different sales channels available to us;
11. the limited size of our sales force;
12. the amount we spend on research and development;
13. changes in our strategy;
14. changes in our key personnel;
15. changes in regulatory matters; and
16. general economic trends in the economy.
WE MAY NEED ADDITIONAL FUNDING IN THE FUTURE AND THESE FUNDS MAY NOT BE
AVAILABLE TO US
We believe that our existing capital resources, bank and equipment
financing loans and anticipated revenue from the sales of our products will be
adequate to satisfy our currently planned operating and financial requirements
through fiscal year 2001, although no assurances can be given. We will need
additional funds, however, if we do not achieve anticipated revenue from the
sale of our Piccolo and VetScan products. In addition, we expect to incur
substantial additional costs to support our future operations, including:
1. further commercialization of our products and development of new test
methods to allow us to further penetrate the human diagnostic market and
the veterinary diagnostic market;
2. our need to acquire capital equipment for our manufacturing facilities,
which includes the ongoing development and implementation of automated
manufacturing lines to provide capacity for the production of commercial
volumes of our products;
3. research and design costs related to the continuing development of our
current and future products; and
4. additional pre-clinical testing and clinical trials for our current and
future products.
To the extent that our existing resources and anticipated revenue from the
sale of the Piccolo and VetScan products are insufficient to fund our
activities, we will have to raise additional funds from the issuance of public
or private equity or debt securities. We may not be able to raise additional
funding, or if we are able to, we may not be able to raise funding on acceptable
terms. We may dilute then-existing
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shareholders if we raise additional funds by issuing new equity securities.
Alternatively, we may have to relinquish rights to certain of our technologies,
products and/or sales territories if we are required to obtain funds through
arrangements with collaborative partners. If we are unable to raise needed
funds, we may be required to curtail our operations significantly. This would
materially adversely affect our future operating results and financial
condition.
WE HAVE LIMITED MARKETING AND DISTRIBUTION EXPERIENCE AND FEW RESOURCES TO
DEVOTE TO MARKETING AND DISTRIBUTION
We have been marketing our VetScan System products to the veterinary
diagnostic market and our Piccolo System in the human diagnostic market for less
than five years each. Accordingly, we have very limited marketing and
distribution experience. Further, we have limited resources to devote to
marketing and distribution. In particular, we have only fifteen full-time sales
personnel involved in our sales and marketing activities. While these
individuals work with our distribution partners both domestically and
internationally to extend our market reach, the primary selling activities are
often done by these individuals. If we are to increase our sales, we will need
to increase the size of our sales force. However, we may be constrained from
growing our sales force by our financial resources and the availability of
qualified sales personnel. This means that we may not be able to build an
effective sales and marketing organization, or we may not be able to establish
an extensive and effective distribution network. We cannot assure you that:
1. we will be able to build a successful sales and marketing organization;
2. we will be able to establish effective distribution arrangements;
3. any distribution arrangements that we are able to establish will be
successful in marketing our products; or
4. the costs associated with marketing and distributing our products will
not be excessive.
WE NEED TO DEVELOP ADDITIONAL REAGENT DISCS FOR THE HUMAN DIAGNOSTIC MARKET IF
WE ARE TO COMPETE IN THAT MARKET
We have developed a blood analysis system that consists of a portable blood
analyzer and single-use reagent discs. Each reagent disc performs a series of
standard blood tests. We believe that it is necessary to develop additional
series of reagent discs with various tests for use with the Piccolo and VetScan
systems. Currently, we have primarily developed reagent discs suitable for the
veterinary diagnostic market. In order to be competitive in the more lucrative
human diagnostic market, we need to develop additional reagent discs that
include certain standard tests for which the medical community receives
reimbursements from third party payors such as HMOs and Medicare. The tests that
we need to develop to compete in the human diagnostic market are the standard
electrolyte test for chloride, which is currently in clinical testing, and a
test for lipids, which is currently under development. We may not be able to
develop these new reagent discs on a timely and cost effective basis. Also, we
may not be able to obtain regulatory clearance for these new reagent discs.
Further, even if we gain regulatory approval, we may not be able to successfully
manufacture or market the reagent discs. Our failure to meet one or more of
these challenges will materially adversely effect our operating results and
financial condition.
WE RELY ON SOLE DISTRIBUTOR ARRANGEMENTS IN A NUMBER OF COUNTRIES AND WE HAVE
EXPERIENCED A HIGH DEGREE OF DISTRIBUTOR TURNOVER INTERNATIONALLY
We have limited experience and resources in marketing and distributing our
products in international markets. We currently have exclusive distribution
agreements in the following countries: Argentina, Australia, Austria, France,
Germany, Greece, Hong Kong, Italy, Japan, Korea, Mexico, New Zealand, Norway,
Portugal, Spain, Switzerland, Turkey; and the United Kingdom.
Our distributor in each of these countries is responsible for obtaining the
necessary approvals to sell our products. These distributors may not be
successful in obtaining proper approvals for our products in their respective
countries, and they may not be successful in marketing our products. We plan to
enter into additional distribution agreements to expand our international
distribution base and solidify our
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international presence. However, we may not be successful in entering into
additional distributor agreements. Our distributors may, and have in the past,
terminate their relationship with us at any time. If that happens, we may not be
able to negotiate acceptable alternative distribution relationships. Moreover,
we have experienced a high degree of turnover among our international
distributors which makes it difficult for us to establish a steady distribution
network overseas. Should we be unable to establish such a reliable overseas
distribution network for any of these reasons, we will not be successful in
marketing our Piccolo and VetScan products internationally and our operating
results will be materially and adversely affected.
WE MAY BE UNSUCCESSFUL IN EXPANDING OUR LIMITED MANUFACTURING CAPACITY
We have limited manufacturing capacity and we recently relocated our
corporate headquarters and manufacturing facility from Sunnyvale, California to
a new facility in Union City, California. Because our products are highly
complex, it is difficult for us to manufacture them through an assembly line
process. Furthermore, we will need to obtain government approval for our new
facility and are subject to periodic regulatory inspections. While we believe
that the autoline assembly system that we are installing will be adequate for
our current needs, we may not be able to increase the scale of the autoline
system to handle either (1) larger volume production or (2) the production of
new or varied products. Further, all aspects of such a scale-up must comply with
applicable governmental regulations. We may encounter significant delays or
incur unforeseen costs in expanding our manufacturing capacity because of the
complexities described above. In addition, we will need to continue to develop
the infrastructure that we require to effectively manage our manufacturing
operations. The process of manufacturing sufficient quantities of our products
can be expensive, time-consuming and complex. We may not be able to obtain
necessary regulatory approval for our new facility in a timely fashion or on an
ongoing basis. Furthermore, we may not be able to successfully add technical and
non-technical personnel that we need to meet the additional staffing
requirements that any increase in production would require. If we are unable to
develop such increased manufacturing capabilities and infrastructure with
appropriate quality, at acceptable costs and on a timely basis, our business or
future financial condition will be materially adversely affected.
WE DEPEND ON SOLE SUPPLIERS FOR SEVERAL KEY COMPONENTS TO OUR PRODUCTS
We use several components that are currently available from limited or sole
sources. A single injection molding manufacturer currently makes the molded
plastic discs which, when loaded with reagents and welded together, form our
reagent disc products. We believe that only a few manufacturers are capable of
producing these discs to the narrow tolerances that we require; to date, we have
only qualified one manufacturer to manufacture the molded plastic discs.
Moreover, we currently depend on a single vendor for some of the chemicals that
we use to produce the dry reagent chemistry beads. Further, our analyzer
products use several technologically advanced components that are each available
only from single vendors. Because we are dependent on a limited number of
suppliers and manufacturers for critical components to our products, we are
particularly susceptible to any interruption in the supply of these products or
the viability of our assembly arrangements. The loss of one of these suppliers
or a disruption in our manufacturing arrangements would materially adversely
affect our business and future financial condition.
COMPETITION FROM LARGER, BETTER ESTABLISHED ENTITIES SUCH AS HOSPITALS AND
COMMERCIAL LABORATORIES
Blood analysis is a well established field in which there are a number of
competitors that have substantially greater financial resources and larger, more
established marketing, sales and service organizations than we do. We compete
with the following organizations:
1. commercial clinical laboratories;
2. hospitals clinical laboratories; and
3. manufacturers of bench top multi-test blood analyzers and other testing
systems that health care providers can use "on-site."
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We may not be able to compete with these organizations or their products or
with future organizations or future products.
Historically, hospitals and commercial laboratories perform the most human
medical testing, and commercial laboratories perform the most veterinary medical
testing. Our products compete with the commercial and hospital laboratories with
respect to:
1. range of tests offered;
2. the immediacy of results;
3. cost effectiveness;
4. ease of use; and
5. reliability of results.
We believe that we compete effectively on each of these factors except for
the range of tests offered. Clinical laboratories are effective at processing
large panels of tests using skilled technicians and complex equipment. While our
current offering of reagent discs cannot provide the same range of tests, we
believe that our products provide a sufficient breadth of test menus to compete
successfully with clinical laboratories, in certain limited markets, on the
basis of the other four factors. However, we cannot assure a potential investor
that we will continue to be able to compete effectively on (1) cost
effectiveness, (2) ease of use, (3) immediacy of results or (4) reliability of
results. We also cannot assure a potential investor that we will ever be able to
compete effectively on the basis of range of tests offered.
Competition in the human and veterinary diagnostic markets is intense. Most
of our competitors have significantly greater financial and other resources than
we do. In particular, many of our competitors have large sales forces and
well-established distribution channels. Consequently, we must develop our
distribution channels and improve our direct sales force in order to compete in
these markets.
CHANGES IN THIRD PARTY PAYOR REIMBURSEMENT REGULATIONS CAN NEGATIVELY EFFECT OUR
BUSINESS
By regulating the maximum amount of reimbursement they will provide for
blood testing services, third party payors, such as HMOs, pay-per-service
insurance plans, Medicare and Medicaid, can indirectly affect the pricing or the
relative attractiveness of our human testing products. For example, the Health
Care Financing Administration sets the level of reimbursement of fees for blood
testing services for Medicare beneficiaries. If third party payors decrease the
reimbursement amounts for blood testing services, it may decrease the amount
that physicians and hospitals are able to charge patients for such services.
Consequently, we will need to charge less for our products. If the government
and third party payors do not provide for adequate coverage and reimbursement
levels to allow health care providers to use our products, the demand for our
products will decrease.
WE ARE SUBJECT TO NUMEROUS GOVERNMENTAL REGULATIONS
Need for FDA certification for our Medical Device Products.
Our Piccolo products are regulated under the 1976 Medical Device Amendments
to the Food, Drug and Cosmetic Act, which is administered by the United States
Food and Drug Administration (the "FDA"). The FDA classified our initial Piccolo
products as "Class II" devices. Class II devices require us to submit to the FDA
a pre-market notification form or 510(k). The FDA uses the 510(k) to
substantiate product claims that are made by medical device manufacturers prior
to marketing. In our 510(k) notification, we must, among other things, establish
that the product we plan to market is "substantially equivalent" to (1) a
product that was on the market prior to the adoption of the 1976 Medical Device
Amendment or (2) to a product that the FDA has previously cleared under the
510(k) process. The FDA review process of a 510(k) notification can last
anywhere from three months to over year, and the FDA must issue a written order
finding "substantial equivalence" before a company can market a medical device.
To date, we have received market clearance from the FDA for our Piccolo System
and 16 reagents tests that we have on four reagent discs. We are currently
developing additional tests that the FDA will have to clear through the 510(k)
notification procedures. These new test products are crucial for our
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success in the human diagnostic market. If we do not receive 510(k) clearance
for a particular product, we will not be able to sell that product in the United
States.
Need to Comply with Manufacturing Regulations
The 1976 Medical Device Amendment also requires us to manufacture our
Piccolo products in accordance with Good Manufacturing Practices guidelines.
Current Good Manufacturing Practice requirements are set forth in the quality
system regulation. These requirements regulate the methods used in, and the
facilities and controls used for, the design, manufacture, packaging, storage,
installation and servicing of our medical devices intended for human use. Our
manufacturing facility is subject to periodic audits. In addition, various state
regulatory agencies may regulate the manufacture of our products. For example,
we have obtained a license from the State of California to manufacture our
products. In September 1996, the FDA granted our Sunnyvale, California
manufacturing facility "in compliance" status, based on the regulations for Good
Manufacturing Practices for medical devices. We are scheduled for inspection by
the FDA and the State of California on a routine basis, typically once every 24
months. We cannot assure an investor that we will successfully pass an
inspection by the FDA or the State of California of our new facility in Union
City, California. In addition, we cannot assure an investor that we can comply
with all current or future government manufacturing requirements and
regulations. If we are unable to comply with the regulations, or if we do not
pass routine inspections, our business and future results of operations will be
materially adversely effected.
Effects of the Clinical Laboratory Improvement Amendments on our Products.
Our Piccolo products are affected by the Clinical Laboratory Improvement
Amendments of 1988. The Clinical Laboratory Improvement Amendments are intended
to insure the quality and reliability of all medical testing in the United
States regardless of where tests are performed. The current Clinical Laboratory
Improvement Amendments divide laboratory tests into three categories: "simple,"
"moderately complex" and "highly complex." Tests performed using the Piccolo
system are in the "moderately complex" category. This category requires that any
location in which testing is performed be certified as a laboratory. Hence, we
can only sell our Piccolo products to customers who meet the standards of a
laboratory. To receive "laboratory" certification, a testing facility must be
certified by the Health Care Financing Administration. After the testing
facility receives a "laboratory" certification, it must then meet the Clinical
Laboratory Improvement Amendments regulations. Because we can only sell our
Piccolo products to testing facilities that are certified "laboratories," the
market for our products is correspondingly constrained. In an effort to expand
the market for our Piccolo products, we have filed an application to have our
Piccolo products exempted from the Clinical Laboratory Improvement Amendments.
If our exemption request is denied, we will continue to be subject to the
Clinical Laboratory Improvement Amendments. Consequently, the market for our
Piccolo products will be confined to those testing facilities that are certified
as "laboratories" and our growth will be limited accordingly.
We are subject to various federal, state and local regulations.
Federal and state regulations regarding the manufacture and sale of health
care products and diagnostic devices may change. We cannot predict what impact,
if any, such changes would have on our business. In addition, as we continue to
sell in foreign markets, we may have to obtain additional governmental
clearances in those markets. We may not be able to obtain regulatory clearances
for our products in the United States or in foreign markets, and the failure to
obtain these regulatory clearances will materially adversely affect our business
and results of operations.
Although we believe that we will be able to comply with all applicable
regulations of the Food and Drug Administration and of the State of California,
including Quality System Regulations, current regulations depend on
administrative interpretations. Future interpretations made by the Food and Drug
Administration, the Health Care Finance Administration or other regulatory
bodies may adversely affect our business.
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WE RELY ON PATENTS AND OTHER PROPRIETARY INFORMATION, THE LOSS OF ANY OF WHICH
WOULD NEGATIVELY AFFECT OUR BUSINESS
As of November 1, 2000, we have filed twenty-two patent applications in the
United States and have been issued twenty patents. Additionally, we have filed
several international patent applications covering the same subject matter as
our domestic applications. The patent position of any medical device
manufacturer, including Abaxis, is uncertain and may involve complex legal and
factual issues. Consequently, we may not be issued any additional patents,
either domestically or internationally. Furthermore, our patents may not provide
significant proprietary protection because there is a chance that they will be
circumvented or invalidated. We cannot be certain that we were the first creator
of the inventions covered by our issued patents or pending patent applications,
or that we were the first to file patent applications for these inventions,
because (1) the United States Patent and Trademark Office maintains all patent
applications in secrecy until it issues the patents and (2) publications of
discoveries in the scientific or patent literature tend to lag behind actual
discoveries by several months.
In addition, we may need to license or circumvent certain patents to
produce our products. Moreover, we may have to participate in interference
proceedings, which are proceeding in front of the U.S. Patent and Trademark
Office, to determine who will be issued a patent. These proceedings could be
costly and could be decided against us.
Although we have not had infringement claims filed against us to date, we
may in the future be sued by third parties who claim that our products violate
their intellectual property rights. We may not be successful in defending
ourselves against such claims. Even if we are successful, the defense of such
claims would be expensive and would divert management's focus away from running
our business. Consequently, any infringement claim, even if without merit, could
adversely affect our business.
We also rely upon copyrights, trademarks and unpatented trade secrets.
Others may independently develop substantially equivalent proprietary
information and techniques that would undermine our proprietary technologies.
Further, others may gain access to our trade secrets or disclose such
technology. Any of these events would negatively impact our business.
WE DEPEND ON KEY MEMBERS OF OUR MANAGEMENT AND SCIENTIFIC STAFF, AND WE MUST
RETAIN AND RECRUIT QUALIFIED INDIVIDUALS IF WE ARE TO BE COMPETITIVE
We are highly dependent on the principal members of our management and
scientific staff. The loss of any of these key personnel might impede the
achievement of our business objectives. We currently do not maintain key man
life insurance on any of our employees. Furthermore, in order to be successful,
we must recruit and retain additional qualified marketing, sales and
manufacturing personnel. Although we believe that we will be successful both in
retaining our current management and scientific staff and attracting and
retaining skilled and experienced marketing, sales and manufacturing personnel,
we may not be able to employ such personnel on acceptable terms because numerous
medical products and other high technology companies compete for the services of
these qualified individuals.
WE ARE SUBJECT TO PRODUCT LIABILITY CLAIMS AND WE MAY NOT HAVE SUFFICIENT
PRODUCT LIABILITY INSURANCE
Our business exposes us to potential product liability risks which are
inherent in the testing, manufacturing and marketing of human medical products.
We currently maintain product liability insurance. We believe that this
insurance is adequate for our needs, taking into account the risks involved and
cost of coverage. However, our product liability insurance may be insufficient
to cover potential liabilities. Furthermore, in the future the coverage that we
require may be unavailable on commercially reasonable terms, if at all. Even
with our current insurance coverage, a product liability claim or recall could
materially adversely affect our business or our financial condition.
WE MUST COMPLY WITH STRICT AND COSTLY ENVIRONMENTAL REGULATIONS
We are subject to stringent federal, state and local laws, rules,
regulations and policies that govern the use, generation, manufacture, storage,
air emission, effluent discharge, handling and disposal of certain
8
<PAGE> 12
materials and wastes. In particular, we are subject to laws, rules and
regulations governing the handling and disposal of biohazardous materials used
in the development and testing of our products. Although we believe that we have
complied with these laws and regulations in all material respects and have not
been required to take any action to correct any noncompliance, we may have to
incur significant costs to comply with environmental regulations if our
manufacturing to commercial levels continues to increase. In addition, if a
government agency determines that we have not complied with these laws, rules
and regulations, we may have to pay significant fines and/or take remedial
action that would be expensive.
OUR STOCK PRICE IS HIGHLY VOLATILE AND INVESTING IN OUR STOCK INVOLVES A HIGH
DEGREE OF RISK
The market price of our common stock, like the securities of many other
medical products companies, fluctuates over a wide range, and will likely
continue to be highly volatile in the future. The following factors may affect
the market price of our common stock:
1. fluctuation in our operating results;
2. announcements of technological innovations or new commercial products by
us or our competitors;
3. changes in governmental regulation;
4. prospects and proposals for health care reform;
5. governmental or third party payors' controls on prices that our
customers may pay for our products;
6. developments or disputes concerning patent or our other proprietary
rights;
7. public concern as to the safety of our devices or similar devices
developed by our competitors; and
8. general market conditions.
Because our stock price is so volatile, investing in our common stock is
highly risky. A potential investor must be able to withstand the loss of his
entire investment in our common stock.
OUR PREFERRED STOCK MAY HAVE THE EFFECT OF PREVENTING OR DELAYING A CHANGE OF
CONTROL OF ABAXIS
Our Board of Directors, without shareholder approval, can issue preferred
stock. The issuance of one or more series of preferred stock can (1) adversely
effect the rights of the holders of our common stock, (2) can delay or prevent a
change of control or (3) make it more difficult for our current shareholders to
remove management. Without approval from our shareholders, in September 1996 we
issued shares of Series A Preferred Stock; in July 1997 we issued shares of
Series B Preferred Stock; in November 1998 we issued shares of Series C
Preferred Stock; and in October 2000 we issued shares of Series D Preferred
Stock.
WE DO NOT PAY DIVIDENDS
We have never paid cash dividends, and we do not anticipate paying cash
dividends in the future.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
public reference facilities of the SEC in Washington, D.C., Chicago, Illinois
and New York, New York. Please call the SEC at 1-800-SEC-0330 for further
information on the public reference rooms. Our SEC filings are also available to
the public from the SEC's web site at http:\\www.sec.gov.
The SEC allows us to "incorporate by reference" the information we have
filed 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 that we
file with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any additional documents
we file with the SEC until the offering
9
<PAGE> 13
of the common stock is terminated. This prospectus is part of a registration
statement on Form S-3 that we filed with the SEC. The documents that we
incorporate by reference are:
(1) The description of our common stock contained in our Registration
Statement on Form 8-A filed on December 11, 1991.
(2) Our Annual Report on Form 10-K for the fiscal year ended March 31,
2000, as amended.
(3) Our Quarterly Reports on Form 10-Q for the quarters ended June 30,
2000 and September 30, 2000.
(4) Our Definitive Proxy Statement for our annual meeting of
shareholders filed on September 13, 2000.
(5) Our Current Report on Form 8-K filed on October 19, 2000.
(6) Our Amended Current Report on Form 8-K/A filed on January 5, 2001.
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Shareholder Services
Abaxis, Inc.
3240 Whipple Road
Union City, California 94587
(510) 441-6161
FORWARD-LOOKING INFORMATION
This prospectus and the documents that we are incorporating by reference
contain forward-looking statements. We base these statements on our current
expectations, estimates and projections about our industry. Either the beliefs
of our management, or the assumptions that they make, form the basis for those
expectations, estimates and projections. The safe harbor created by Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of
1934 generally protects Abaxis and the selling shareholders from liability for
these statements. You can often recognize such forward-looking statements by
words such as "anticipates," "expects," "intends," "plans," "believes," "seeks,"
"estimates," and variations of such words and similar expressions.
These forward-looking statements do not guarantee future performance and
are subject to risks, uncertainties and assumptions that are difficult to
predict. The "Risk Factor" section starting on page two of this prospectus sets
forth some of such risks and uncertainties. The documents that we have
incorporated by reference in this prospectus may also set forth risks and
uncertainties. These risks and uncertainties could cause actual results to
differ materially and adversely from those that we have discussed in the
forward-looking statements. We do not undertake an obligation to publicly update
any of these forward-looking statements to reflect new information or future
events.
USE OF PROCEEDS
We will not receive any proceeds from the sale of common stock by any of
the selling shareholders.
SELLING SHAREHOLDERS
The selling shareholders will hold shares of common stock that are issuable
upon conversion of the Series D Preferred Stock and upon the exercise of
warrants to acquire shares of common stock.
SERIES D PREFERRED STOCK
We sold an aggregate of 6,578 shares of our Series D Convertible Preferred
Stock to certain non-U.S. purchasers on October 4, 2000 and November 23, 2000.
The 6,578 shares of Series D Preferred Stock may convert into 943,270 shares of
our common stock based upon an initial conversion rate determined by multiplying
the number of Series D Preferred Stock shares sold by $1,000 and dividing the
resultant number by $7.00, the original conversion price for the Series D
Preferred Stock. The conversion price may
10
<PAGE> 14
be adjusted to reflect any stock dividends, stock splits, stock combinations,
recapitalizations or similar events. The Series D Preferred Stock will
automatically convert into Common Stock on the earlier of any date following
October 4, 2001 when the price of our common stock as reported on the Nasdaq
National Market System has exceeded $14.00 or on October 4, 2005. However,
should the price of our common stock as reported on the Nasdaq National Market
System on the first date after October 4, 2005 be below $7.00 per share, then
the Series D Preferred Stock shall convert no later than October 4, 2006. Shares
of Series D Preferred Stock have no voting rights other than those required by
the General Corporation Law of the State of California.
NUMBER OF SHARES OF COMMON STOCK THAT WE MAY ISSUE
Assuming the full conversion of the Series D Preferred Stock and the
exercise of outstanding warrants to purchase 478,900 shares of our Common Stock
issued in connection with the sale of the Series D Preferred Stock, we would
issue or have issued 1,422,710 shares of our common stock to the selling
shareholders and these 1,422,710 shares would represent approximately 8% of our
outstanding capital stock as of December 31, 2000.
SELLING SHAREHOLDER TABLE
The table below lists, in each case as of December 31, 2000:
1. the name of each selling shareholder;
2. the number of shares each selling shareholder beneficially owns,
assuming the full conversion of the Series D Preferred Stock and the
exercise of all outstanding warrants to purchase our Common Stock issued
in connection with the Sale of the Series D Preferred Stock;
3. how many shares of common stock the selling shareholder may resell under
this prospectus; and
4. assuming each selling shareholder sells all the shares listed next to
its name, how many shares of common stock each selling shareholder will
beneficially own after completion of the offering.
Beneficial ownership is determined in accordance with rules promulgated by
the SEC, and the information is not necessarily indicative of beneficial
ownership for any other purpose. This table is based upon information supplied
to us by officers, directors and principal shareholders. Except as otherwise
indicated, Abaxis believes that the persons or entities named in the table have
sole voting and investment power with respect to all shares of the common stock
shown as beneficially owned by them, subject to community property laws where
applicable.
In order to prevent dilution to the selling shareholders, these numbers may
also change because of (1) stock splits, (2) stock dividends or (3) similar
events involving our common stock.
11
<PAGE> 15
We may amend or supplement this prospectus from time to time in the future
to update or change this list of selling shareholders and shares which may be
resold.
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO THE OFFERING SHARES TO BE AFTER THE OFFERING
---------------------- SOLD IN THE -----------------------
SELLING SHAREHOLDER SHARES PERCENT OFFERING SHARES PERCENT
------------------- --------- --------- ------------ ------------ -------
<S> <C> <C> <C> <C> <C>
Banca del Gottardo...................... 578,571 578,571 3.3%
Viale S. Franscini 8
6900 Lugano
Switzerland
NeoMed Innovations ASA.................. 422,541 2.7% 96,428 518,969 3.0
Parkveien I5
0256 Oslo
Norway
NeoMed Fund............................. 192,857 192,857 1.1
Parkveien 55
0256 Oslo
Norway
Vladimir Ostoich........................ 29,314 29,314 1.0
Chief Executive Officer
Mosely Limited Partnership.............. 28,928 28,928 *
Laddie John Dill........................ 4,821 4,821 *
Frederick Gardner....................... 9,462 9,462 *
G. Tilton Gardner....................... 9,642 9,462 *
Peter Koepke............................ 9,642 9,462 *
Michael Pressman........................ 19,285 19,285 *
Silk, Inc. ............................. 4,821 4,821 *
Martha Aron Trust....................... 9,642 9,462 *
Affiliate of Our Vice President,
Research and Development
Ronald and Laurette Blasig.............. 19,285 19,285 *
Michael Mercer.......................... 8,392 8,392 *
Vice President, Domestic Marketing and
Sales
Robert Milder........................... 3,857 3,857 *
Vice President, Operations
Clinton H. Severson..................... 29,507 29,507 *
Chairman of the Board of Directors,
President and Chief Executive Officer
OMT Capital Management.................. 14,464 14,464 *
E. Brooke Alexander..................... 9,642 9,642 *
Argossey, Ltd. ......................... 15,621 15,621 *
Johnny Barbis........................... 4,821 4,821 *
Robert Lee Biggs........................ 19,285 19,285 *
Peter Colgan............................ 9,642 9,642 *
G. Tilton Gardner....................... 35,678 35,678 *
Stephen Genender........................ 4,821 4,821 *
Louis Horwitz........................... 9,642 9,642 *
</TABLE>
12
<PAGE> 16
<TABLE>
<CAPTION>
BENEFICIAL OWNERSHIP BENEFICIAL OWNERSHIP
PRIOR TO THE OFFERING SHARES TO BE AFTER THE OFFERING
---------------------- SOLD IN THE -----------------------
SELLING SHAREHOLDER SHARES PERCENT OFFERING SHARES PERCENT
------------------- --------- --------- ------------ ------------ -------
<S> <C> <C> <C> <C> <C>
Edward Kitchen.......................... 54,000 54,000 *
IRA FBO James McPhail................... 4,821 4,821 *
Odyssey Venture Partners LP............. 15,814 15,814 *
Oxcal Venture Partners.................. 19,285 19,285 *
Gruntal Securities...................... 150,000 150,000 *
Total.............................. 1,422,170
</TABLE>
-------------------------
* Less than one percent
PLAN OF DISTRIBUTION
The selling shareholders may sell their shares of common stock in one or
more transactions, which may involve block transactions,
1. on the Nasdaq National Market;
2. on such other markets on which our common stock may from time to time be
trading;
3. in privately-negotiated transactions;
4. through the writing of options on the shares of common stock, short
sales or any combination of the two.
The selling shareholders may sell at market prices at the time of sale, at
prices related to the market price or at negotiated prices. It is possible that
a selling shareholder will attempt to sell shares of common stock in block
transactions to market makers or other purchasers at a price per share which may
be below the then current market price. Some or all of the shares of common
stock offered by this prospectus may not be issued to, or sold by, the selling
shareholders.
The selling shareholders and any brokers, dealers or agents, upon effecting
the sale of any of the shares of common stock, may be deemed to be
"underwriters" as that term is defined under the Securities Act of 1933 or the
Securities Exchange Act of 1934, or the rules and regulations thereunder. In
addition, the selling shareholders and any other persons participating in the
sale or distribution of the shares of common stock will be subject to applicable
provisions of the Securities Exchange Act of 1934 and the rules and regulations
thereunder. These provisions may limit the timing of purchases and sales of any
of common stock by the selling shareholders or any other such person. The
foregoing may affect the marketability of the shares of common stock.
We have agreed to use our best efforts to keep the Registration Statement,
of which this prospectus constitutes a part, effective until the earlier of (1)
the date when the selling shareholders have resold all of the shares of their
registered common stock pursuant to Rule 144, Regulation S or an effective
registration statement or (2) one year from the date that the SEC declares the
Registration Statement effective.
LEGAL MATTERS
Gray Cary Ware & Freidenrich LLP will issue an opinion about the legality
of the shares for us.
EXPERTS
The financial statements and the related financial statement schedule
incorporated in this prospectus by reference from the Company's Annual Report on
Form 10-K for the year ended March 31, 2000 have been audited by Deloitte &
Touche LLP, independent auditors, as stated in their reports, which are
incorporated herein by reference, and have been so incorporated in reliance upon
the reports of such firm given upon their authority as experts in accounting and
auditing.
13
<PAGE> 17
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
No one (including any salesman or broker) is authorized to provide oral or
written information about this offering that is not included in this prospectus.
ABAXIS, INC.
1,422,170 Shares of
Common Stock
-------------------------
PROSPECTUS
-------------------------
January 10, 2001
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
<PAGE> 18
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth all expenses, other than the underwriting
discounts and commissions payable by the Registrant in connection with the sale
of the Common Stock being registered. All amounts shown are estimates except for
the registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT TO BE
PAID
------------
<S> <C>
Registration fee............................................ $ 2,112.72
Nasdaq National Market additional listing fee............... --
Printing expenses........................................... 5,000
Legal fees and expenses..................................... 20,000
Accounting fees and expenses................................ --
Transfer agent and registrar fees........................... --
Miscellaneous expenses...................................... 2,887.28
----------
Total..................................................... $30,000.00
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Company's Articles of Incorporation (Exhibit 3.1) and Bylaws (Exhibit
3.2) provide that the Company shall indemnify its directors, officers,
employees, and agents to the full extent permitted by California law, including
in circumstances in which indemnification is otherwise discretionary under
California law. In addition, the Company has entered into separate
indemnification agreements (Exhibit 10.1) with its directors and officers which
would require the Company, among other things, to indemnify them against certain
liabilities which may arise by reason of their status or service (other than
liabilities arising from willful misconduct of a culpable nature) to advance
their expenses incurred as a result of any proceeding against them as to which
they could be indemnified, and to maintain directors' and officers' liability in
reasonable amounts. The Company currently has directors' and officers' liability
insurance in the amount of $4 million per occurrence or per year.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
(including reimbursement of expenses incurred) arising under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
3.1 Restated Articles of Incorporation(4)(7)
3.2 By-laws(1)
3.3 Certificate of Determination(9)
3.4 Certificate of Correction of the Certificate of
Determination
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich LLP
10.1 1989 Stock Option Plan as amended and forms of agreement(3)
10.2 1992 Outside Directors Stock Option Plan and forms of
agreement(4)
10.3 401(k) Plan(1)
10.4 Exclusive Distribution Agreement dated September 20, 1991
between the Company and Teramecs(1)(2)
10.5 Sponsored Research Agreement dated as of September 20, 1991
between the Company and Teramecs(1)(2)
10.6 Development Agreement between the Company and Becton
Dickinson and Company (through its Becton Dickinson
Immunocytometry Systems Division) dated April 9, 1993(4)(5)
</TABLE>
II-1
<PAGE> 19
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
10.7 Supply Agreement between the Company and Becton Dickinson
and Company (through its Becton Dickinson Immunocytometry
Systems Division) dated September 16, 1994(5)(6)
10.8 Licensing agreement between the Company and Pharmacia
Biotech, Inc. dated October 1, 1994(5)(6)
10.9 Employment Agreement with Mr. Clinton H. Severson dated
March 31, 1997(8)
10.10 Lease Agreement with Principal Development Investors, LLC,
dated June 21, 2000
10.11 Registration Rights Agreement dated July 18, 1997 between
the Company and certain shareholders(9)
10.12 Securities Purchase Agreement dated July 18, 1997 between
the Company and certain shareholders(10)
21.1 Subsidiaries of Registrant
23.1 Independent Auditors' Consent
23.2 Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
</TABLE>
-------------------------
(1) Incorporated by reference from Registration Statement No. 33-44326 filed
December 11, 1991.
(2) Confidential treatment of certain portions of these agreements has been
granted.
(3) Incorporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1992.
(4) Corporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1993.
(5) Confidential treatment of certain portions of these agreements has been
granted.
(6) Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1994.
(7) Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1996.
(8) Incorporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1997.
(9) Incorporated by reference to the Company's Current Report on Form 8-K filed
October 19, 2000.
(10) Incorporated by reference to the Company's Amended Current Report on Form
8-K/A filed January 5, 2000.
All Schedules have been omitted because the information required to be set
forth therein is not applicable or is shown in the Financial Statements or notes
thereto.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification by the Registrant for liabilities arising under
the Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions referenced in Item 14 of
this Registration Statement or otherwise, the Registrant has been advised that
in the opinion of the 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 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 hereunder, the
II-2
<PAGE> 20
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.
The undersigned registrant hereby undertakes that:
- For purposes of determining any liability under the Securities Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective; and
- For the purpose 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.
II-3
<PAGE> 21
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 Union City, State of California, on January 10, 2001.
ABAXIS, INC.
By: /s/ CLINTON S. SEVERSON
--------------------------------------
Clinton S. Severson
President and Chief Executive Officer
(Principal Executive Officer)
POWER OF ATTORNEY
Each of the officers and directors of Abaxis, Inc. whose signature appears
below hereby constitutes and appoints Clinton S. Severson and Donald Stewart,
and each of them, his true and lawful attorneys and agents, each with full power
of substitution, and each with power to act alone, to sign on behalf of the
undersigned any amendment or amendments to this Registration Statement on Form
S-3 (including post-effective amendments) and any and all new registration
statements filed pursuant to Rule 462 under the Securities Act of 1933, as
amended, in connection with or related to the offering contemplated by this
Registration Statement, as amended, and to perform any acts necessary in order
to file such amendments or registration statements, with exhibits thereto and
other documents in connection therewith, and each of the undersigned does hereby
ratify and confirm his signature as it may be signed by his said attorney and
agent to any and all such documents and all that said attorneys and agents, or
their or his substitutes, shall do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement on Form S-3 has been signed by the following persons in the capacities
and on the date indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ CLINTON S. SEVERSON Chairman of the Board, January 10, 2001
----------------------------------------------------- President and Chief Executive
Clinton S. Severson Officer
/s/ DONALD STEWART Vice President, Finance & January 10, 2001
----------------------------------------------------- Administration, Chief
Donald Stewart Financial Officer and
Principal Accounting Officer
/s/ RICHARD BASTIANI Director January 10, 2001
-----------------------------------------------------
Richard Bastiani
/s/ BRENTON G. A. HANLON Director January 10, 2001
-----------------------------------------------------
Brenton G. A. Hanlon
/s/ PRITHIPAL SINGH, PH.D. Director January 10, 2001
-----------------------------------------------------
Prithipal Singh, Ph.D.
</TABLE>
II-4
<PAGE> 22
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ERNEST S. TUCKER Director January 10, 2001
-----------------------------------------------------
Ernest S. Tucker
</TABLE>
II-5
<PAGE> 23
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF DOCUMENT
------- -----------------------
<C> <S>
3.1 Restated Articles of Incorporation(4)(7)
3.2 By-laws(1)
3.3 Certificate of Determination(9)
3.4 Certificate of Correction of the Certificate of
Determination
5.1 Opinion and Consent of Gray Cary Ware & Freidenrich LLP
10.1 1989 Stock Option Plan as amended and forms of agreement(3)
10.2 1992 Outside Directors Stock Option Plan and forms of
agreement(4)
10.3 401(k) Plan(1)
10.4 Exclusive Distribution Agreement dated September 20, 1991
between the Company and Teramecs(1)(2)
10.5 Sponsored Research Agreement dated as of September 20, 1991
between the Company and Teramecs(1)(2)
10.6 Development Agreement between the Company and Becton
Dickinson and Company (through its Becton Dickinson
Immunocytometry Systems Division) dated April 9, 1993(4)(5)
10.7 Supply Agreement between the Company and Becton Dickinson
and Company (through its Becton Dickinson Immunocytometry
Systems Division) dated September 16, 1994(5)(6)
10.8 Licensing agreement between the Company and Pharmacia
Biotech, Inc. dated October 1, 1994(5)(6)
10.9 Employment Agreement with Mr. Clinton H. Severson dated
March 31, 1997(8)
10.10 Lease Agreement with Principal Investors, LLC, dated June
21, 2000
10.11 Registration Rights Agreement dated July 18, 1997 between
the Company and certain shareholders(9)
10.12 Securities Purchase Agreement dated July 18, 1997 between
the Company and certain shareholders(10)
23.1 Independent Auditors' Consent
23.2 Consent of Gray Cary Ware & Freidenrich LLP. Reference is
made to Exhibit 5.1
24.1 Power of Attorney (see signature page)
</TABLE>
-------------------------
(1) Incorporated by reference from Registration Statement No. 33-44326 filed
December 11, 1991.
(2) Confidential treatment of certain portions of these agreements has been
granted.
(3) Incorporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1992.
(4) Incorporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1993.
(5) Confidential treatment of certain portions of these agreements has been
granted.
(6) Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1994.
(7) Incorporated by reference to the exhibit filed with the Company's Quarterly
Report on Form 10-Q for the quarter ended December 31, 1996.
(8) Incorporated by reference to the exhibit filed with the Company's Annual
Report on Form 10-K for the fiscal year ended March 31, 1997.
(9) Incorporated by reference to the Company's Current Report on Form 8-K filed
October 19, 2000.
(10) Incorporated by reference to the Company's Amended Current Report on Form
8-K/A filed January 5, 2000.
