As filed with the Securities and Exchange Commission on July 21, 2000
Registration No. 333-40606
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
Under
The Securities Act of 1933
HEMAGEN DIAGNOSTICS, INC.
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(Exact name of registrant as specified in its charter)
34-40 Bear Hill Road
Waltham, Massachusetts 02451
Delaware (781) 890-3766 04-2869857
----------------- ----------------------------- --------------
(State or other (Address, including zip code, (IRS Employer
jurisdiction of and telephone number, Identification
incorporation or including area code, Number)
organization) of registrant's principal
executive offices)
Gary P. Kreider, Esq.
Keating, Muething & Klekamp, P.L.L.
14th Floor, Provident Tower
One East Fourth Street
Cincinnati, Ohio 45202
(513) 579-6411
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(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of the proposed sale to the public: From time
to time after the effective date of the Registration Statement except that the
sale of shares in exercise of the warrants will commence April 30, 2001.
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 securities being registered on this form are to be offered on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ] _____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] _______________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
================================================================================
Amount Proposed Proposed Amount of
Title of Shares to be Maximum Aggregate Maximum Aggregate Registration
to be Registered Registered Price Per Unit Offering Price Fee
---------------- ---------- ----------------- ----------------- -------------
Common Stock(2) 7,069,172 $1.625(1) $11,487,404 $3,033
Warrants to
Purchase Common
Stock(3) 2,601,800 $1.34 $ 3,486,412 $ 921
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Total $3,954(4)
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(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee.
(2) Includes 1,309,872 shares of Common Stock held by the selling
securityholders named herein; 3,157,500 shares of Common Stock which may be
acquired by the selling securityholders upon conversion of the Company's 8%
Senior Subordinated Secured Convertible Notes; and 2,601,800 shares of
Common Stock acquirable upon the exercise of warrants issued to the selling
securityholders.
(3) The warrants to purchase common stock are not exercisable until the first
anniversary of their date of original issuance.
(4) A total of $4,530 was paid with the initial filing. No additional filing
fee is included with the filing of this Amendment No. 1.
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 this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
shall determine.
<PAGE>
PROSPECTUS
Hemagen Diagnostics, Inc.
This Prospectus covers the following transactions and securities:
o Sales by the selling securityholders named in this Prospectus of:
o Up to 2,601,800 common stock purchase warrants each exercisable
for one share at an exercise price of $2.75 per share.
o Up to 7,069,172 shares of common stock. Of these shares,
2,601,800 will be issued by Hemagen upon exercise of warrants and
up to 3,157,500 will be issued upon conversion of our 8% Senior
Subordinated Secured Convertible Notes. The warrants are not
exercisable until the first anniversary of their date of original
issuance.
o Exercise of warrants for the purchase of 2,601,800 shares of our
common stock for $2.75 per share.
We will not receive any proceeds from sales by the selling securityholders.
We will receive all of the net proceeds from the exercise of the warrants.
Our common stock is traded in the Nasdaq SmallCap Market and on the Boston
Stock Exchange under the symbols "HMGN" and "HGN", respectively. The warrants
are not currently traded, but Hemagen intends to list the Warrants on the Nasdaq
SmallCap Market. On July __, 2000 the last reported sale price of Hemagen's
common stock was $___.
The securities offered pursuant to this Prospectus involve a high degree of
risk. See "Risk Factors" beginning at page 3.
Neither the Securities and Exchange Commission or any state securities
commission has approved or disapproved of these securities or determined that
this Prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is July __, 2000
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may also read and copy any document we file at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are available to the public over
the internet at the SEC's web site at http://www.sec.gov.
The SEC allows us to "incorporate by reference" the information we file
with them. This prospectus incorporates important business and financial
information about Hemagen which is not included in or delivered with this
Prospectus. The information incorporated by reference is an important part of
this Prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by
reference:
o Our Annual Report on Form 10-KSB for the fiscal year ended September
30, 1999, as amended;
o Our Quarterly Reports on Form 10-QSB for the fiscal quarter ended
December 31, 1999 and March 31, 2000;
o Our Current Report on Form 8-K dated April 20, 2000; and
o Any future filings made with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all of
the securities
We also incorporate by reference our Registration Statement on Form 8-A
filed on February 2, 1993, registering our common stock under Section 12 of the
Exchange Act, which describes our common stock.
You may obtain a copy of these filings, without charge, by writing or
telephoning us at the following address:
William P. Hales
President
Hemagen Diagnostics, Inc.
34-40 Bear Hill Road
Waltham, Massachusetts 02451
(781) 890-3766
You should rely only on the information incorporated by reference or
provided in this Prospectus. We have not authorized anyone else to provide you
with different information. We 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 those documents.
<PAGE>
Certain statements contained in this Prospectus and in reports that we file
with the SEC that are not historical facts constitute forward-looking
statements, within the meaning of the Private Securities Litigation Reform Act
of 1995, and are intended to be covered by the safe harbors created by that Act.
Reliance should not be placed on forward-looking statements because they involve
known and unknown risks, uncertainties and other factors including, without
limitation, those contained in this Risk Factors section, which may cause actual
results, performance or achievements to differ materially from those expressed
or implied. Any forward-looking statement speaks only as of the date made. We
undertake no obligation to update any forward-looking statements to reflect
events or circumstances after the date on which they are made.
RISK FACTORS
An investment in the securities offered under this Prospectus involves a
high degree of risk. The following risk factors, in addition to the other
information contained in this Prospectus, should be considered carefully in
evaluating us and our business.
The Report of Our Independent Accountants States That There Is Substantial Doubt
as to Our Ability to Continue as a Going Concern.
Our accountants' report for the fiscal year ended September 30, 1999
expressed a substantial doubt about the ability of Hemagen to continue as a
going concern. In making this statement the accountants noted the loss of
$5,160,355 incurred by Hemagen in fiscal 1999 and a substantial decrease in its
working capital during fiscal 1999.
Because Our Stock Price May Be Volatile, the Shares of Common Stock You Purchase
May Lose Their Value Rapidly
The market price of our common stock has been, and may continue to be,
highly volatile. This price has ranged between $0.81 and $6.00 in the fifty-two
week period ending July 14, 2000. The stock market has from time to time
experienced extreme price and volume fluctuations, particularly in the
biotechnology sector, which have often been unrelated to the operating
performance of particular companies. Factors such as announcements of
technological innovations or new products by our competitors or disappointing
results by third parties, as well as market conditions in our industry, may
significantly impact the market price of our common stock.
Potential Sales of Common Stock
We have issued 1,840,772 shares of common stock since September 30, 1999
when we had 7,751,890 shares outstanding. We are also committed to issue up to
10,863,695 additional shares if all outstanding convertible notes, warrants and
options are converted or exercised. All of these shares will be registered and
available for public sale by their holder. Depending on market conditions, the
<PAGE>
sale of significant amounts of such stock into the market could adversely affect
market prices for our stock.
We Need Additional Financing
We had cash and cash equivalents on hand of $392,554 at March 31, 2000. We
may require additional funds to finance our planned operations for fiscal 2000.
If we are unable to raise additional equity and/or borrow additional funds, we
may not be able to execute our business plan and continue operations.
Our Industry is Highly Competitive
We operate in the highly competitive clinical diagnostics field. We have
historically focused on niche markets, which we believe offer significant growth
potential and limited competition. However, we compete, and will compete in the
future, with numerous other companies, many of which have substantially greater
financial, technical and managerial resources than we do.
We May Lose Our Proprietary Rights
We protect our proprietary technology primarily as trade secrets rather
than by relying on patents, either because patent protection is not possible or
because, in our opinion, patent protection would be less effective than
maintaining secrecy. Also, we rely on confidentiality agreements with our
employees. Our efforts to maintain secrecy through confidentiality agreements
and trade secret protection may be unsuccessful.
If We Are Unable to Retain Our Key Personnel, We May Be Unable to Achieve Our
Developmental Objectives
Our success depends, in large part, upon our ability to attract and retain
a highly qualified scientific and management team. The loss of key personnel or
the failure to recruit the necessary additional personnel needed for a qualified
team might impede the achievement of our objectives. We face competition for
qualified personnel from other companies, research and academic institutions,
government entities and other organizations. We may not be successful in hiring
or retaining qualified scientific or management personnel on acceptable terms,
given the competition among numerous diagnostics companies.
If We Are Sued for Product Related Liabilities, the Cost Could Be Prohibitive to
Us
The testing, marketing and sale of human healthcare products entail an
inherent exposure to product liability, and third parties may successfully
assert product liability claims against us. Although we currently have insurance
covering our products, we may not be able to maintain this insurance at
<PAGE>
acceptable costs in the future, if at all. In addition, our insurance may not be
sufficient to cover large claims. Significant product liability claims could
result in large and unexpected expenses as well as a costly distraction of
management resources and potential negative publicity and reduced demand for our
product.
Our Activities Involve the Use of Hazardous Materials, and We May Be Held Liable
for Any Accidental Injury from These Hazardous Materials
Our research and development activities involve the controlled use of
hazardous materials, including radioactive compounds. Although we believe that
our safety procedures for handling and disposing of our hazardous materials
comply with the standards prescribed by federal, state and local laws and
regulations, the risk of accidental contamination or injury from these materials
cannot be completely eliminated. In the event of an accident, we could be held
liable for damages that result and significant and unexpected costs including
costs relating to liabilities and clean-up, costs from increased insurance
premiums or liability to obtain adequate insurance at a reasonable price and
costs from loss of operations during clean-up.
We are Subject to Extensive Government Regulation
Our manufacturing and marketing of diagnostic test kits are subject to
government regulation in the United States and the other countries where we
market our products. The process of requesting and obtaining regulatory
approvals involves lengthy and detailed laboratory and clinical testing, and
other costly and time-consuming procedures. The extent of governmental
regulation which may arise from future legislative or administrative action
cannot be predicted.
Our Common Stock May Be Delisted from the Nasdaq Small Cap Market, Which Would
Make it More Difficult for You to Sell Shares
Our common stock is listed on the Nasdaq SmallCap Market. In order to
continue to be listed on Nasdaq, however, we must comply with certain
maintenance standards. In the event of a delisting, an investor could find it
more difficult to dispose of or to obtain accurate quotations as to the market
value of our common stock.
In addition, if our common stock were to become delisted from trading on
Nasdaq, our common stock could be considered a penny stock. SEC regulations
generally define a penny stock to be an equity security that is not listed on
Nasdaq or a national securities exchange and that has a market value of less
than $5.00 per share, subject to certain exceptions. The SEC regulations impose
strict requirements on broker-dealers executing transactions in penny stocks. If
our common stock is no longer traded on Nasdaq and becomes subject to the
regulations applicable to penny stocks, investors may find it more difficult to
obtain timely and accurate quotes and execute trades in our common stock.
<PAGE>
No Market Has Developed for the Warrants
The Warrants are not currently traded, but we intend to list the Warrants
on the Nasdaq SmallCap Market. There can be no assurance, however, that a market
for the warrants will develop or continue.
We Have Not Paid, and Do Not Expect to Pay, Dividends on Our Common Stock
We have not paid dividends on our common stock since our inception and do
not intend to pay any dividends to our stockholders in the foreseeable future.
We intend to reinvest any earnings in the development and expansion of our
business.
THE COMPANY
We are a biotechnology company which develops, manufactures, and markets
medical diagnostic test kits used to aid in the diagnosis of certain autoimmune
and infectious diseases. In the United States, we sell our products directly to
physicians, veterinarians, clinical laboratories and blood banks and on a
private-label basis through multinational distributors of medical supplies.
Internationally, we sell our products primarily through distributors. We also
manufacture and sell a FDA-cleared clinical chemistry analyzer ("The Analyst")
used to measure important constituents in human and animal blood. We sell The
Analyst through distributors servicing both the physician's office laboratory
and veterinary markets.
We are a Delaware corporation. Our executive offices are located at 34-40
Bear Hill Road, Waltham, Massachusetts 02451; telephone number (781) 890-3766.
USE OF PROCEEDS
We will not receive any proceeds from the sale of warrants or common stock
by the selling securityholders. We will receive $7,154,950 if all of the
warrants are exercised. We will utilize these proceeds as received for general
working capital purposes.
DESCRIPTION OF WARRANTS
Exercise Price and Terms
The registered holder of each warrant is entitled to purchase one share of
common stock at an exercise price of $2.75 at any time on or after April 30,
2001 (the first anniversary of the date of original issuance) until April 30,
2002, subject to adjustment as provided below.
The holder of any warrant may exercise such warrant by surrendering the
certificate representing the warrant to our Transfer and Warrant Agent, with the
subscription on the reverse side of such certificate properly completed and
<PAGE>
executed, together with payment of the exercise price. The warrants may be
exercised at any time in whole or in part at the applicable exercise price until
expiration of the warrants on April 30, 2002. No fractional shares will be
issued upon the exercise of the warrants.
Adjustments
The exercise price and the number of shares of common stock purchasable
upon the exercise of the warrants are subject to adjustment upon the occurrence
of certain events, including stock dividends, stock splits, combinations or
reclassifications on or of the common stock. Additionally, an adjustment would
be made in the case of a reclassification or exchange of common stock,
consolidation or merger of Hemagen with or into another corporation or sale of
all or substantially all of the assets of Hemagen in order to enable holders of
warrants to acquire the kind and number of shares of stock or other securities
or property receivable in such event by a holder of the number of shares that
might otherwise have been purchased upon the exercise of the warrant. No
adjustments will be made unless such adjustment would require an increase or
decrease of at least $0.10 or more in such exercise price. No adjustment to the
exercise price of the shares subject to the warrants will be made for dividends
(other than stock dividends), if any, paid on the common stock or for securities
issued pursuant to exercise of the warrants.
Transfer, Exchange and Exercise
The warrants may be presented to the Transfer and Warrant Agent for
transfer or exchange at any time at or before the close of business on April 30,
2002. The warrants may also be presented for exercise at any time on or after
April 30, 2001 and before the close of business on April 30, 2002. At the close
of business on April 30, 2002, the warrants become wholly void and of no value.
After the warrants have been registered, and if a market for the warrants
develops, the holder may sell the warrants publicly.
Call of Warrants
Hemagen may call the warrants for $0.10 per warrant at any time after April
30, 2001 provided that the closing bid of our common stock has exceeded $4.25
for ten consecutive business days. We will give holders of warrants at least 30
and no more than 60 days' written notice of the date on which the warrants will
be called. During such period, the warrants may be exercised in the manner set
forth above. After the date the warrants are called and before they expire, any
outstanding warrants will represent the right to receive $0.10.
Transfer and Warrant Agent
We have appointed Continental Stock Transfer & Trust Company of New York,
New York, the transfer agent for our common stock, as our Transfer and Warrant
Agent.
<PAGE>
SELLING SECURITYHOLDERS
We issued a total of $6,315,000 in units during April and May, 2000. These
units consisted of $6,315,000 principal amount of 8% Senior Subordinated Secured
Convertible Notes due 2005, 1,184,072 shares of our common stock and 2,526,000
warrants to purchase 2,526,000 shares of our common stock. We issued the units
in a private placement.
Securities offered for sale by selling securityholders under this
prospectus consist of warrants, common stock purchased in the private placement
and common stock issuable upon conversion of the convertible notes and upon
exercise of the warrants. The securities offered under this prospectus also
include shares of common stock, warrants and shares of common stock issuable
upon exercise of the warrants acquired by Jesup & Lamont Securities Corporation,
our placement agent for the private placement, as a placement fee.
Listed below are the names of the purchasers (excluding our officers,
directors and affiliates) in the private placement and the number of warrants
and shares of common stock which may be sold by each purchaser. The number of
shares of common stock which may be sold by each purchaser includes the shares
issued as part of the units and the maximum number of shares acquirable upon
conversion of the Notes and upon exercise of the warrants. Also listed below are
the shares of common stock offered by Jesup & Lamont Securities Corporation.
Maximum Number of Number of
Name Shares Offered(1) Warrants Offered
--------------------------------------- ----------------- ----------------
Deutsche Bank Securities, Inc. 815,625 300,000
Strong River Investments, Inc. 543,750 200,000
Arthur E. Engel Trust Dtd. 5/5/88 543,750 200,000
Howard F. Curd 435,000 160,000
KCID Industries, Inc. 358,875 132,000
C.V. Anderson, Jr. 271,875 100,000
BNC Bach International, Ltd. 271,875 100,000
Thomas E. Hales 271,875 100,000
The Aysseh Family LLC 271,875 100,000
Carol J. Hochman, Trustee
for Richard Hochman Defined
Benefit Plan 217,500 80,000
The Seiler Family Trust
Dated 6/27/95 Robert J. Seiler
Trustee 217,500 80,000
Barry S. Nussbaum 217,500 80,000
Jesup & Lamont Securities Corporation 201,600 75,800
Howard R. Curd 163,125 60,000
Dennis Galgano 163,125 60,000
Wayne Saker 163,125 60,000
Maria Molinsky 108,750 40,000
Charles Schwab & Co., Inc.
FBO Richard H. Hochman SEP
IRA DTA 3/31/98 UTA Charles
Schwab & Co., Inc. 108,750 40,000
The Daniel Conners Trust 108,750 40,000
Howard Ross 54,375 20,000
Stifel Nicolaus & Co.
F/B/O Peter D. Wierenga 54,375 20,000
Eileen Sena - IRA 54,375 20,000
Allan Zavaro 54,375 20,000
Richard H. Hein Trust Dtd 6/12/95 54,375 20,000
A.F. Lehmkuhl 54,375 20,000
Richard H. Hochman 54,375 20,000
Stifel Nicolaus & Co. F/B/O
NorDruk Partners Inv. Co. 54,375 20,000
Limited Partners
David Rozinov 43,500 16,000
Jonathan S. Thurm 40,781 15,000
Eric Hackel 40,781 15,000
John A. Ericsson 27,188 10,000
<PAGE>
Maximum Number of Number of
Name Shares Offered(1) Warrants Offered
--------------------------------------- ----------------- ----------------
Craig Petrassi 27,188 10,000
Joseph Kendelski 27,188 10,000
Peter Stern 27,188 10,000
Stifel Nicolaus & Co.
F/B/O Gary R. Raiser, TTEE 27,188 10,000
Robert B. Hasloecher 27,188 10,000
Robert Chamow 27,188 10,000
Herman Glasser 27,188 10,000
KDP Enterprises 27,188 10,000
Ari Soshtain 27,188 10,000
James Wiley & Judith Wiley 27,188 10,000
Gilad Ottensoser 27,188 10,000
Irwin Gruverman 27,188 10,000
Jerome Toder & Mildred Toder, JTWROS 27,188 10,000
Trade Sources International 27,188 10,000
Ari Pearl 27,188 10,000
Charles Goodin 27,188 10,000
Stifel Nicolaus & Co. F/B/O
Paul Drueke & Mary Jo Drueke 27,188 10,000
Ran Furman 27,188 10,000
Ralph Mandarino 27,188 10,000
Joan L. Morgen 10,875 4,000
Jacqueline Waterman 10,875 4,000
(1) Consists of common stock purchased in the private placement, the maximum
number of shares of common stock issuable upon conversion of the
convertible notes (with reference to the minimum conversion price) and
shares of common stock which may be acquired upon exercise of the Warrants.
Listed below is information regarding shares and warrants offered by our
officers, directors and affiliates that purchased units in the offering:
<PAGE>
Percent Percent
of Shares of Shares
No. of Maximum Beneficially Beneficially
Shares No. of No. of Owned Owned
Before Shares Warrants Before After
Name Offering(1) Offered(2) Offered Offering(3) Offering(4)
----------------- ----------- --------- -------- ----------- --------------
Redwood Holdings,
Inc.(5) 1,065,203 271,875 100,000 9.6% 7.1%
William P. Hales 689,700 217,500 80,000 6.0% 4.0%
-----------
(1) Includes shares issued as part of the units and the maximum number of
shares acquirable upon conversion of the convertible notes and upon
exercise of the warrants. Also includes shares beneficially owned before
the offering. For Redwood Holdings, share numbers include 149,602 warrants
to purchase common stock and exclude 866,007 options to purchase common
stock which do not become exercisable until March 2001. For Mr. Hales,
share numbers include 159,500 warrants to purchase common stock and exclude
866,007 options to purchase common stock which do not become exercisable
until March 2001.
(2) Consists of common stock purchased in the private placement, the maximum
number of shares of common stock issuable upon conversion of the
convertible notes (with reference to the minimum conversion price) and
shares of common stock which may be acquired upon exercise of the Warrants.
(3) Percentages beneficially owned before the offering include shares
obtainable upon conversion of convertible notes at the initial conversion
price of $2.50 and exclude shares obtainable upon exercise of Warrants.
(4) Assumes sale of maximum number of shares offered.
(5) The sole shareholder of Redwood Holdings, Inc. is an employee stock
ownership plan whose principal participants are Jerry L. Ruyan, Thomas A.
Donelan and Christopher P. Hendy, each of whom is an officer and director
of Hemagen.
PLAN OF DISTRIBUTION
To the extent described in this Prospectus, we are registering the
securities offered hereby on behalf of the selling securityholders. We are also
offering shares of our common stock to the holders of our warrants as described
in this prospectus. The selling securityholders may sell or transfer all or a
portion of the securities offered hereby from time to time to third parties
directly or by or through brokers, dealers, agents or underwriters, who may
receive compensation in the form of underwriting discounts, concessions or
commissions from the selling securityholders and/or from purchasers of the
securities for whom they may act as agent. However, we are not aware that any
selling securityholders have entered into any agreements, understandings or
arrangements with any underwriters or broker-dealers regarding the sale of their
securities, nor is there an underwriter or coordinating broker acting in
connection with the proposed sales or transfers of securities by the selling
securityholders. Sales and transfers of the securities may be effected from time
to time in one or more transactions, with respect to the common stock, on the
Nasdaq SmallCap Market and the Boston Stock Exchange, in the over-the-counter
market, in negotiated transactions or otherwise, at a fixed price or prices,
<PAGE>
which may be changed, at market prices prevailing at the time of sale, at
negotiated prices, or without consideration, through put or call options
transactions relating to the securities, through short sales of securities or a
combination of such methods of sale, or by any other legally available means.
The term, "selling securityholders" includes donees, pledgees and assignees
in interest selling securities from the named selling securityholders after the
date of this prospectus. Any or all of the securities may be sold or transferred
from time to time by the selling securityholders by means of:
o a block trade in which the broker or dealer so engaged will attempt to
sell the securities as agent but may position and resell a portion of
the block as principal to facilitate the transaction;
o purchases by a broker or dealer as principal and resale by such broker
or dealer for its account pursuant to this prospectus;
o ordinary brokerage transactions and transactions in which the broker
solicits purchasers;
o through the writing of options on the common stock;
o pledges as collateral to secure loans, credit or other financing
arrangements and any subsequent foreclosure, if any, thereunder;
o gifts, donations and contributions; and
o any other legally available means.
The aggregate net proceeds to the selling securityholders from the sale of
the securities will be the purchase price of such securities less any
commissions.
In order to comply with the securities laws of certain states, if
applicable, the securities will be sold in such jurisdictions only through
registered or licensed brokers or dealers. In addition, in certain states the
securities may not be sold unless they have been registered or qualified for
sale in the applicable state or an exemption from the registration or
qualification requirement is available and is complied with.
The selling securityholders and any brokers, dealers, agents or
underwriters that participate in the distribution of the securities may be
deemed to be "underwriters" within the meaning of Section 2(11) of the
Securities Act of 1933, in which event any discounts, concessions and
commissions received by such brokers, dealers, agents or underwriters and any
profit on the resale of the securities purchased by them may be deemed to be
underwriting commissions or discounts under the Securities Act. Because the
selling securityholders may be deemed to be "underwriters" within the meaning of
Section 2(11) of the Securities Act of 1933, the selling securityholders will be
subject to the prospectus delivery requirements of the Securities Act of 1933,
which may include delivery through the facilities of the Nasdaq National Market.
Additionally, the anti-manipulative provisions of Regulation M promulgated under
the Securities Exchange Act of 1934 may apply to sales by the selling
securityholders in the market.
<PAGE>
No underwriter, broker, dealer or agent has been engaged by us in
connection with the distribution of the securities registered herein.
Any securities covered by this Prospectus which qualify for sale pursuant
to Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this Prospectus. There is no assurance that the selling
securityholders will sell any of the securities. The selling securityholders may
transfer, devise or gift securities by other means not described herein.
We will pay all of the expenses incident to the registration of the
securities, other than underwriting discounts and selling commissions, if any.
The selling securityholders may agree to indemnify any agent, dealer or
broker-dealer that participates in transactions involving sales of securities
against certain liabilities, including liabilities under the Securities Act of
1933.
If we are notified by selling securityholders that any material arrangement
has been entered into with a broker-dealer for the sale of securities through a
block trade, special offering, exchange distribution or secondary distribution
or a purchase by a broker or dealer, we will file a supplement to this
prospectus, if required, pursuant to Rule 424(b) under the Securities Act of
1933. The supplement will disclose:
o the name of each such selling securityholders and of the participating
broker-dealer(s);
o the number of securities involved;
o the price at which such securities will be sold;
o the commissions to be paid or discounts or concessions to be allowed
to such broker-dealer(s), where applicable;
o that such broker-dealer(s) did not conduct any investigation to verify
the information set out or incorporated by reference in this
prospectus; and
o other facts material to the transaction.
A supplement to this prospectus will be filed if we are notified by the
selling securityholders that a donee or pledgee intends to sell more than 500 of
any of the securities.
LEGAL MATTERS
The legality of the securities offered hereby will be passed upon for
Hemagen by Keating, Muething & Klekamp, P.L.L., Cincinnati, Ohio.
<PAGE>
EXPERTS
The financial statements incorporated by reference in this Prospectus have
been audited by BDO Seidman, LLP, independent certified public accountants, to
the extent and for the periods set forth in their report (which contains an
explanatory paragraph regarding the Company's ability to continue as a going
concern) incorporated herein by reference, and are incorporated herein in
reliance upon such report given upon the authority of said firm as experts in
auditing and accounting.
MISCELLANEOUS
No person is authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy any securities other than the
registered securities to which it relates or an offer to sell or a solicitation
of an offer to buy such securities in any jurisdiction to any person to whom it
is unlawful to make such offer or solicitation in such jurisdiction. Neither the
delivery of this prospectus nor any sale hereunder shall, under any
circumstances, create any implication that there has been no change in the
affairs of Hemagen since the date of this prospectus or that the information in
this prospectus is correct as of any time subsequent to its date.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a list of estimated expenses in connection with the
issuance and distribution of the securities being registered, with the exception
of underwriting discounts and commissions:
Registration fee ................................ $ 4,530.00
Printing costs................................... 500.00
Legal fees and expenses.......................... 7,500.00
Accounting fees and expenses..................... 1,500.00
Blue sky fees and expenses....................... 500.00
Miscellaneous.................................... 100.00
----------
Total............................................ $14,630.00
All of the above expenses other than the registration fee are estimates.
All of the above expenses will be paid by the registrant.
Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law, Section 102(b)(7), enables a corporation
in its original certificate of incorporation or an amendment thereto validly
approved by securityholders to eliminate or limit personal liability of members
of its Board of Directors for violations of a director's fiduciary duty of care.
However, the elimination or limitation shall not apply where there has been a
breach of the duty of loyalty, failure to act in good faith, engaging in
intentional misconduct or knowingly violating a law, paying a dividend or
approving a stock repurchase which was deemed illegal or obtaining an improper
personal benefit. The Registrant's Certificate of Incorporation includes the
following language:
"To the maximum extent permitted by Section 102(b)(7) of
the General Corporation Law of Delaware, a director of
this Corporation shall not be personally liable to the
Corporation or its Securityholders for monetary damages
for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of
loyalty to the Corporation or its Securityholders, (ii)
for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law,
(iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which
the director derived an improper personal benefit."
<PAGE>
Delaware General Corporation Law, Section 145, permits a corporation
organized under Delaware law to indemnify directors and officers with respect to
any matter in which the director or officer acted in good faith and in a manner
he reasonably believed to be not opposed to the best interests of the
Registrant, and, with respect to any criminal action, in which he had reasonable
cause to believe his conduct was lawful. The Bylaws of the Registrant include
the following provision:
"Reference is made to Section 145 and any other relevant
provisions of the General Corporation Law of the State of
Delaware. Particular reference is made to the class of
persons, hereinafter called "Indemnitees," who may be
indemnified by a Delaware corporation pursuant to the
provisions of such Section 145, namely, any person, or the
heirs, executors, or administrators of such person, who
was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit, or
proceeding, whether civil, criminal, administrative, or
investigative, by reason of the fact that such person is
or was a director, officer, employee, or agent of such
corporation or is or was serving at the request of such
corporation as a director, officer, employee, or agent of
another corporation, partnership, joint venture, trust, or
other enterprise. The Corporation shall, and is hereby
obligated to, indemnify the Indemnitees, and each of them,
in each and every situation where the Corporation is
obligated to make such indemnification pursuant to the
aforesaid statutory provisions. The Corporation shall
indemnify the Indemnitees, and each of them, in each and
every situation where, under the aforesaid statutory
provisions, the Corporation is not obligated, but is
nevertheless permitted or empowered, to make such
indemnification, it being understood that, before making
such indemnification with respect to any situation covered
under this sentence, (i) the Corporation shall promptly
make or cause to be made, by any of the methods referred
to in Subsection (d) of such Section 145, a determination
as to whether each Indemnitee acted in good faith and in a
manner he reasonably believed to be in, or not opposed to,
the best interests of the Corporation, and, in the case of
any criminal action or proceeding, had no reasonable cause
to believe that his conduct was unlawful, and (ii) that no
such indemnification shall be made unless it is determined
that such Indemnitee acted in good faith and in a manner
he reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, in the case of any
criminal action or proceeding, had no reasonable cause to
believe that his conduct was unlawful."
Item 16. Exhibits.
Exhibit No. Description
----------- --------------------------------------------------------
4.1* Form of Warrant
4.2* Form of 8% Senior Subordinated Secured Convertible Note
5* Opinion regarding Legality
23.1* Consent of Independent Certified Public Accountants
<PAGE>
23.2* Consent of Counsel (contained in Exhibit 5)
24* Power of Attorney (contained on the signature page)
--------------------
*Previously filed
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions set forth in Item 15 hereof, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement.
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
<PAGE>
Provided, however, that paragraphs (i) and (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 with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and the
offering of such securities at the time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from Registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(4) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the Registrant's annual report pursuant to Section
13(a) or 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 offering therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Waltham, State of Massachusetts, on July 20,
2000.
HEMAGEN DIAGNOSTICS, INC.
BY:/s/Jerry L. Ruyan
--------------------------------
Jerry L. Ruyan, Chairman and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Capacity Date
----------------------------- --------------------------- ---------------
/s/Jerry L. Ruyan
----------------------------- Chairman of the Board, July 20, 2000
Jerry L. Ruyan Chief Executive Officer
and Director (Principal
Executive Officer)
/s/William P. Hales
----------------------------- President, Treasurer July 20, 2000
William P. Hales and Director
----------------------------- Secretary and Director July __, 2000
*Thomas A. Donelan
/s/Deborah F. Ricci
----------------------------- Chief Financial Officer July 20, 2000
Deborah F. Ricci (Principal Accounting
Officer and Principal
Financial Officer)
----------------------------- Director July __, 2000
*Alan S. Cohen
<PAGE>
----------------------------- Director July __, 2000
*Ricardo M. de Oliveira
----------------------------- Director July __, 2000
*Christopher P. Hendy
*By:/s/William P. Hales Attorney-in-Fact July 20, 2000
-------------------------
William P. Hales
