As filed with the Securities and Exchange Commission on March 24, 2000
Registration No. 333-06147
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
ON FORM S-3 TO
FORM SB-2
REGISTRATION STATEMENT
Under
The Securities Act of 1933
HEMAGEN DIAGNOSTICS, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2869857
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
Hemagen Diagnostics, Inc.
34-40 Bear Hill Road
Waltham, Massachusetts 02451
(781) 890-3766
(Address 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
(Name, address of agent for service)
Approximate date of commencement of the proposed sale to the public: Upon
effectiveness of this Registration Statement.
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. [ ]
Pursuant to Rule 416, there are also being registered such additional shares of
Common Stock as may become issuable pursuant to antidilution provisions of the
Private Placement Warrants and a Placement Agent Warrant.
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TABLE OF CONTENTS
Page
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PROSPECTUS SUMMARY......................................................... 2
RISK FACTORS............................................................... 2
USE OF PROCEEDS............................................................ 5
SELLING SECURITYHOLDERS.................................................... 5
PLAN OF DISTRIBUTION....................................................... 9
LEGAL MATTERS.............................................................. 10
EXPERTS.................................................................... 11
WHERE YOU CAN FIND MORE INFORMATION........................................ 11
MISCELLANEOUS.............................................................. 12
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PROSPECTUS
Hemagen Diagnostics, Inc.
This Prospectus covers the following transactions and securities:
1. Sales by the selling securityholders named herein of:
- Up to 2,695,255 shares of Common Stock.
- Up to 2,695,255 Common Stock Purchase Warrants each exercisable
for one share at an exercise price of $2.75 per share.
- Up to 2,695,255 shares of Common Stock to be issued upon the
exercise of outstanding Common Stock Purchase Warrants at an
exercise price of $2.75 per share.
2. Exercise of Common Stock Purchase Warrants at an exercise price of
$2.75 per share by persons other than the selling securityholders.
Hemagen will not receive any proceeds from sales by the selling
securityholders. Hemagen will receive all the net proceeds from the exercise of
the Warrants, namely, $7,411,951.
Hemagen's 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 traded in the Nasdaq SmallCap Market under the symbol "HMGNW." On
March 17, 2000 the last reported sale price of Hemagen's Common Stock was $3-5/8
per share and $1-1/4 per Warrant.
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 March __, 2000.
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PROSPECTUS SUMMARY
This Prospectus relates to Common Stock and Common Stock Purchase Warrants
of Hemagen Diagnostics, Inc., a Delaware corporation.
We issued 2,695,255 shares of Common Stock and 2,695,255 Warrants to
purchase 2,695,255 shares of Common Stock at $2.75 per share in a March 1996
private placement. We registered the Shares and Warrants and shares issuable
upon exercise of the Warrants for resale in 1996. An undetermined number of such
Shares and Warrants have been resold pursuant to that registration. This
Prospectus covers the continued resale of those securities by those persons who
acquired them through the 1996 private offering. The 1996 private placement
purchasers are identified as selling securityholders in this Prospectus and are
named starting on page .
This Prospectus also covers the exercise of outstanding Warrants held by
persons other than the selling securityholders who purchased in the 1996 private
offering.
Hemagen will not receive any proceeds from this offering other than up to
$7,411,951 upon exercise of the Warrants.
Hemagen's address is 34-40 Bear Hill Road, Waltham, Massachusetts 02154 and
our telephone number is 1-800-436-2436.
RISK FACTORS
An investment in our Common Stock and Warrants 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 consolidated financial statements [(as set forth in Annex A)] have been
presented on the basis that Hemagen is a going concern which contemplates the
realization of assets and the satisfaction of liabilities in the normal course
of business. We incurred a net loss of $5,160,355 in fiscal 1999 and our working
capital decreased from $871,796 at September 30, 1999 to $220,000 at December
31, 1999. In addition, as of February 7, 2000, we were not in compliance, and
continue to not be in compliance, with certain covenants of our revolving line
of credit agreement with a bank under which we had borrowings of $4,057,500 as
of such date. If we fail to meet our goals with regard to cost reductions and
improved operations, our ability to continue as a going concern may be further
jeopardized.
Because Our Stock Price May Be Volatile,
the Shares 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 $0.75 and $6.00 in the fifty-two
week period ending March 17, 2000. The stock market has from time to time
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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.
We Need Additional Financing
We had cash and cash equivalents on hand of $415,076 at December 31, 1999.
We are in default of the financial covenants of our $3.8 million loan from Fleet
National Bank. We have secured an agreement from that bank to forebear
exercising its remedies until March 31, 2000, so long as no other defaults
occur. We are in the process of raising additional capital through a convertible
secured note offering of $4 million. We believe we will be able to consummate
this offering by March 31, 2000 and utilize the proceeds to pay the bank debt.
However, there is no assurance that this plan will be successful.
In addition, we will 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.
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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
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.
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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.
USE OF PROCEEDS
We will receive $7,411,951 if all of the Warrants are exercised. We will
utilize these proceeds as received for general working capital purposes.
SELLING SECURITYHOLDERS
The following is a list of the persons who purchased our Common Stock and
Warrants in the 1996 private placement along with the number of shares acquired
by them represented by outstanding shares and shares issuable upon exercise of
their Warrants. We believe that many of these persons have sold their Common
Stock and Warrants pursuant to a registered secondary offering. We do not know
how many of these persons still hold these securities, but to the extent the
persons listed own those securities or acquired Common Stock through the
exercise of Warrants purchased in the 1996 private placement, such Warrants and
Common Stock may be publicly sold pursuant to this Prospectus.
Number of
Shares and
Name Warrants
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Ando International, Inc. 727,272
Haussmann Holdings 680,000
Laurentian Special Equity Fund 360,000
One & Co. 336,000
Essex High Tech Fund LP 270,000
The New Discovery Fund 230,000
The Fisher Fund 220,000
Eugene Melnyk 181,820
Apollo Medical Partners 150,000
Okura & Co. (America), Inc. 145,454
Gary Davis 131,256
Barry M. Manuel 120,000
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Jesup and Lamont Securities Corp. 111,064
Ville de Montreal 100,000
U.S. Technology 100,000
Virginia Guilder 90,000
Joseph D. Cooper and Carol J. Cooper, JTWROS 80,000
Wind River Partners LP 80,000
Jesup and Lamont Capital Markets, Inc. 73,278
Bradley Resources Company 72,000
The John Merck Fund 70,000
Money Purchase Pension Plan 60,000
Trust Pret et Revenu 60,000
Lawrence G. Goldberg 50,000
Hiro Yamagishi 46,964
Lawrence Kobren 46,000
G.W. Merck Trust Under Indenture f/b/o Serena M. Hatch 44,000
Leib Merkin Inc. 44,000
Family trust for Wife and Descendants of Thomas J. Berardino 40,000
Leonard J. Adams 40,000
Robert K. Fuchs 40,000
Wayne Saker 40,000
Louis A. Saporito, Jr. 40,000
Alan Vogel and Susan Faits, JTWROS 40,000
IHG Limited Profit Sharing Plan 37,600
John M. Curry 36,364
Howard Caral 35,000
Reuben F. Richards, Jr. 35,000
Guy F. Bernheim 20,000
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Robert E. Briefel 20,000
Dwight M. Evans 20,000
Anthony Ferro 20,000
Charles Fischer 20,000
Generic Trading Associates, LLC 20,000
Michael Kubin and Nicole Kubin, JTWROS 20,000
Claude Lemire 20,000
Michael I. Michael and Venetia Michael, JTWROS 20,000
Donald G. Prigmore 20,000
Louis I. Meisel 20,000
Deborah L. Shear 20,000
Elliott Stagnari 20,000
George W.M. Hatch 20,000
Stanley Zaslow 20,000
Fonds Desjardins - Croissance 20,000
Ronald Brown and Beverly J. Brown, JTWROS 20,000
Nathan Roseman and Susan Roseman, JTWROS 20,000
Marshall Kaplan and Marsha Kaplan, JTWROS 20,000
Steven G. Cooperman, M.D. 20,000
Mitchell J. Held 20,000
Leader Financial Corporation 20,000
Francis W. Hatch 20,000
Serena M. Hatch 20,000
Marjory K. Hatch 20,000
Fonds Commun Canagex - Actions Canadiennes Cruissance 20,000
Serena H. Whitridge 16,000
Timothy Brody 15,000
Ron Furman 15,000
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Brett Uarusi 15,000
James E. Forrest 12,000
North Star Assoc., #1 12,000
Robert L. Leeds, III 11,000
Spencer Trask Securities Inc. 10,200
Arbor Interiors Pension Fund 10,000
James J. Baldino & Roseanne M. Baldino, JTWROS 10,000
Sol J. Barer 10,000
Howard Berke 10,000
Frank J. Coppola and Barbara Ann Coppola, JTWROS 10,000
Myron J. Elfland 10,000
Peter Grabler 10,000
Brent D. Holmes and Kathleen A. Holmes, JTWROS 10,000
Andre W. Iseli 10,000
Lewis J. Levine 10,000
Robert P. McGovern 10,000
Howard G. Schoor and Joan Schoor, JTWROS 10,000
Donald C. Weinberger 10,000
Huyler C. Held 10,000
Ville de Laval 10,000
Ville de Jonquiere 10,000
Spencer F. Segura 10,000
E. Consulting 10,000
Delaware Charter Guaranty and Trust, cust for IRA Robert Walker 10,000
Edward Yodowitz 10,000
Konstantine Vaxevaneris 10,000
Joseph M. Coppola and Margaret Coppola, JTWROS 10,000
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Douglas Spooner 8,290
Samuel Gordon 5,000
Susan Sweet 5,000
Eileen Sena 2,000
PLAN OF DISTRIBUTION
Sales by Selling Securityholders
To the extent described in this Prospectus, we are registering the
securities offered hereby on behalf of the Selling Securityholders. 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. Such
sales and transfers of the securities may be effected from time to time in one
or more transactions on the Nasdaq SmallCap Market and, with respect to the
Common Stock, the Boston Stock Exchange, in the over-the-counter market, in
negotiated transactions or otherwise, at a fixed price or prices, 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 (a) 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; (b) purchases by a broker or dealer as principal and
resale by such broker or dealer for its account pursuant to this Prospectus; (c)
ordinary brokerage transactions and transactions in which the broker solicits
purchasers; (d) through the writing of options on the Common Stock; (e) pledges
as collateral to secure loans, credit or other financing arrangements and any
subsequent foreclosure, if any, thereunder; (f) gifts, donations and
contributions; and (g) 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, in which event any discounts, concessions and commissions
received by such brokers, dealers, agents or underwriters and any profit on the
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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, the Selling Securityholders will be subject to the
prospectus delivery requirements of the Securities Act, which may include
delivery through the facilities of the Nasdaq National Market. Additionally, the
anti-manipulative provisions of Regulation M promulgated under the Exchange Act
may apply to sales by the Selling Securityholders in the market.
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.
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. The
supplement will disclose (i) the name of each such selling Securityholders and
of the participating broker-dealer(s), (ii) the number of securities involved,
(iii) the price at which such securities will be sold, (iv) the commissions to
be paid or discounts or concessions to be allowed to such broker-dealer(s),
where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in
this prospectus and (vi) other facts material to the transaction. A supplement
to this prospectus will be filed if the Company is notified by the Selling
Securityholders that a donee or pledgee intends to sell more than 500 of any of
the securities.
Exercise of Warrants
Holders of Warrants may exercise them by surrendering Warrant Certificates
to Hemagen's Transfer Agent, Continental Stock Transfer & Trust Company,
Compliance Department, 2 Broadway, New York, New York 10004 with a subscription
on the reverse side of the Warrant Certificate completed and executed, together
with payment of the exercise price of $2.75 per share. The Warrants may be
exercised at any time, in whole or in part, until the close of business on
February 28, 2001.
LEGAL MATTERS
The legality of the securities offered hereby will be passed upon for
Hemagen by Keating, Muething & Klekamp, P.L.L., Cincinnati, Ohio.
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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.
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 room at 450 Fifth Street, N.W., Washington, D.C. 20549.
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 Cintas 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
the Quarterly Report on Form 10-Q for the quarter ended December 31, 1999, the
Annual Report on Form 10-K, as amended, for the year ended September 30, 1999,
the Form 8-K/A filed October 14, 1999 and any future filings made with the SEC
under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
prior to the termination of this offering. We also incorporate by reference our
Registration Statement on Form 8-A filed on February 2, 1993, registering the
Company's Common Stock under the Exchange Act, which describes the Common Stock
being registered by this Prospectus.
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 02154
(800) 436-2436
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. If you would like to request documents from us,
please do so by five business days before you have to make an investment
decision.
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
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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.
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 hereof or that the information herein is
correct as of any time subsequent to its date.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The Company expects to incur the following costs and expenses in connection
with the registration of the securities covered by this Prospectus:
*Registration Fee............................. $ 8,434.31
*Legal Fees................................... $ 50,000.00
*Accounting Fees.............................. $ 5,000.00
*Miscellaneous................................ $ 11,565.69
-----------
*Total........................................ $ 75,000.00
===========
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*Estimate
Item 15. Indemnification of Officers and Directors
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 Company'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.
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 Company,
and, with respect to any criminal action, in which he had reasonable cause to
believe his conduct was lawful. The Bylaws of the Company include the following
provision:
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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
Filing
Exhibit No. Description of Exhibit Status
------
3.1 Certificate of Incorporation. A
3.2 Bylaws. A
4.1 Specimen Stock Certificate. A
4.2 Warrant Agreement between the Company
and Continental Stock Transfer & Trust Co. B
5 Opinion regarding Legality of Securities. B
10.1 Technology Purchase Agreement between
Dr. de Oliveira and Dr. Lazzari and
Seragen, Inc., dated April 15, 1983. A
10.2 Assignment and Assumption Agreement
between the Company and Seragen, Inc.,
dated September 12, 1985. A
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10.3 Product Development Agreement between
the Company and Boston University,
dated February 14, 1992. A
10.4 License Agreement between the Company
and Boston University, dated March 1992. A
10.5 Financial Assistance Agreement between
the Company and Hemagen Diagnosticos,
Comercio, Importacao e Exportacao Ltd.,
dated July 31, 1991. A
10.6* 1992 Stock Option Plan A
10.7 Product Purchase Agreement between the
Company and Olympus Corporation, dated
February 24, 1989. A
10.8 OEM Agreement between the Company and
Sigma Diagnostics, Inc., dated May 11, 1992. A
10.9 Note issued by the Company to Boston
University, dated December 15, 1985 A
10.10 Letter Agreement between the Company and
Antonio Lazzari, M.D., dated April 28, 1985. A
10.11 Lease between the Company and Philip
Pagliazzo and Rose Pagliazzo, dated
dated May 15, 1992. A
10.12 Product Development Agreement between
the Company and Sigma A Diagnostics, Inc.,
dated October 16, 1992. A
10.13* Revised Employment Agreement between the
Company and Dr. de Oliveira. A
10.14* Revised Employment Agreement between the
Company and Dr. Franzblau. A
10.15 Description of the Company's lease for
certain premises located in Waltham,
Massachusetts. A
10.16 Lease for office space of Hemagen
Diagnosticos, Comercio, Importaceo e
Exportaceo, Ltd. ("HDC") in Sao Paulo,
Brazil. A
10.17 Description of the Lease for office space
of HDC in Sao Paulo, Brazil. A
10.18 Equity Purchase Agreement between the
Company and HDC, dated as of October 1, 1992. A
10.19 Form of Warrant issued in connection with
the Bridge Loan and Statement of Registration
Rights. A
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10.20 Master Lease Agreement between the Company
and Aberlyn Capital Management Limited
Partnership, dated April 1, 1993. C
10.21 Product Development Agreement between the
Company and Boehringher Mannheim GmbH,
dated November 25, 1993. D
10.22 Option Agreement between the Company and
Boston University, dated October 15, 1993. D
10.23 Agreement between the Company and Carter-
Wallace, Inc. dated December 22, 1994. E
10.24 License Assignment and License Agreement
between the Company and Aberlyn Capital
Management Limited Partnership dated
December 30, 1994. E
10.25 Settlement Agreement dated September 30, 1999. F
21 Subsidiaries of the Registrant. G
23 Consent of Independent Certified
Public Accountants. H
24 Power of Attorney (contained on signature page) H
*Management compensatory contracts.
A. Incorporated by reference to Registration Statement No. 33-52686-B.
B. Incorporated by reference to Registration Statement No. 333-06147 filed on
June 17, 1996.
C. Incorporated by reference to the Company's Form 10-QSB for the quarter
ended March 30, 1993.
D. Incorporated by reference to the Company's Form 10-KSB for the Fiscal Year
ended September 30, 1994.
E. Incorporated by reference to the Company's Form 10-QSB for the quarter
ended December 31, 1994.
F. Incorporated by reference to the Company's Form 8-K filed on October 7,
1999.
G. Filed with the Company's Form 10-KSB for the Fiscal Year ended September
30, 1999.
H. Filed herewith.
Item 17. Undertakings.
(a) The Registrant will:
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(1) File, during any period in which it offers or sells securities, a
post-effective amendment to this registration statement to
include any additional or changed material information on the
plan of distribution.
(2) For determining liability under the Securities Act of 1933, treat
each post-effective amendment as a new registration statement of
the securities offered, and the offering of the securities at
that time to be the initial bona fide offering.
(3) File a post-effective amendment to remove from registration any
of the securities that remain unsold at the end of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 (the "Act") may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised
that in the opinion of the 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 of 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.
(c) The Registrant will:
(1) For determining any liability under the Securities Act, treat 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 under
Rule 424(b)(1), or (4), or 497(h) under the Securities Act as
part of this registration statement as of the time the Commission
declared it effective.
(2) For determining any liability under the Securities Act, treat
each post-effective amendment that contains a form of prospectus
as a new registration statement for the securities offered in the
registration statement, and that offering of the securities at
that time as the initial bona fide offering of those securities.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Post-Effective Amendment to Registration Statement to be
signed on its behalf by the undersigned, thereunto duly authorized, on March 24,
2000.
HEMAGEN DIAGNOSTICS, INC.
By: /s/Jerry L. Ruyan
---------------------------------
Jerry L. Ruyan,
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment to Registration Statement has been signed by the
following persons in the capacities and on the dates indicated. The persons
whose names appear with an asterisk (*) below hereby designate Jerry L. Ruyan or
William P. Hales, or either of them, as attorney-in-fact to sign all amendments
including any post-effective amendments to the Registration Statement as well as
any related registration statement (or amendment thereto) filed pursuant to Rule
462(b) promulgated under the Securities Act of 1933.
Signature Title Date
--------- ----- ----
/s/Jerry L. Ruyan
- ----------------------------- CEO and Chairman of the March 24, 2000
*Jerry L. Ruyan Board of Directors
/s/William P. Hales
- ---------------------------- President, Director March 24, 2000
*William P. Hales
/s/ricardo M. de Oliveira
- ---------------------------- V. P. Research and
*Ricardo M. de Oliveira, M.D. Development, Director March 24, 2000
/s/Alan S. Cohen
- ---------------------------- Director March 24, 2000
*Alan S. Cohen, M.D.
/s/Thomas A. Donelan
- ---------------------------- Director March 24, 2000
*Thomas A. Donelan
/s/Christoher P. Hendy
- ---------------------------- Director March 24, 2000
*Christopher P. Hendy
/s/Deborah F. Ricci
- ---------------------------- Chief Financial Officer March 24, 2000
*Deborah F. Ricci
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<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
Hemagen Diagnostics, Inc.
We hereby consent to the incorporation by reference in the Prospectus
constituting a part of this Registration Statement of our report dated December
2, 1999 relating to the consolidated financial statements of Hemagen
Diagnostics, Inc. appearing in the Company's Annual Report on Form 10-KSB for
the year ended September 30, 1999. Our report contains an explanatory paragraph
regarding the Company's ability to continue as a going concern.
We also consent to the reference to us under the caption "Experts" in the
Prospectus.
BDO Seidman, LLP
Boston, Massachusetts
March 24, 2000
