As filed with the Securities and Exchange Commission on April 21, 1998
Registration No. 33-_____________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
REGISTRATION STATEMENT ON
FORM S-3
under
THE SECURITIES ACT OF 1933
BIOCONTROL TECHNOLOGY, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 3841 25-1229323
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification
organization) Number)
300 Indian Springs Road
Indiana, Pennsylvania 15701 (412) 349-1811
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices and principal place of business)
___________________________________________
Fred E. Cooper, Chief Executive Officer
Biocontrol Technology, Inc.
2275 Swallow Hill Road, Building 2500, Pittsburgh, Pennsylvania 15220
(412)429-0673
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
___________________________________________
Copy to:
M. Kathryn Sweeney, Esq.
Sweeney & Associates P.C.
7300 Penn Avenue, Pittsburgh, Pennsylvania 15208
_____________________________________________________
Approximate date of commencement of proposed sale to the public: As soon as
possible after this registration statement becomes effective.
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 check the following box. [X]
CALCULATION OF REGISTRATION FEE
==============================================================================================
| | | |
Title of Each Class | Amount to be | Proposed Maximum| Proposed Maximum | Amount of
of Securities to be | Registered | Offering Price | Aggregate Offering| Registration Fee
Registered | | Per Share | Price |
| | | |
| | | |
Common Stock | 3,000,000(1) | $0.1255(2) | $375,000 | $113.64
| ____________ | ___________ | _________ | -------
Total 3,000,000 | | $375,000 | $113.64
Total Registration Fee | | | $3,868.46
===============================================================================================
TOTAL OF SEPARATELY NUMBERED PAGES 26 EXHIBIT INDEX ON SEQUENTIALLY NUMBERED
PAGE 20
(1) Secondary Shares to be offered by Selling Shareholders, 2,000,000 of which
are currently held and 1,000,000 of which underly currently exercisable
warrants held by the same Selling Shareholders.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(c) of the Securities Act of 1933, as amended, and based on the
average of the high and low sales prices of the common stock of Registrant
on the Nasdaq Small- Cap Market reported on April 1, 1998.
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 Section 8(a) may
determine.
_____________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with
the Securities and Exchange Commission. These securities may not be sold
nor may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such state.
SUBJECT TO COMPLETION DATED April 21, 1998
PRELIMINARY PROSPECTUS
BIOCONTROL TECHNOLOGY, INC.
Common Stock
RESALE OF 2,000,000 SHARES OF PRESENTLY OUTSTANDING COMMON STOCK, AND 1,000,000
SHARES UNDERLYING CURRENTLY EXERCISABLE WARRANTS.
______________________________________
The Prospectus filed with this Registration relates to an offering of the
following: up to 3,000,000 shares of common stock (the "Common Stock"), of
Biocontrol Technology, Inc. (the "Company" or "BICO"). The Common Stock is
comprised of the following: 2,000,000 shares of Common Stock held by Selling
Shareholders and 1,000,000 shares of Common Stock underlying currently
exercisable warrants held by the same Selling Shareholders (the "Resale
Shares"). It is expected that certain Selling Shareholders may offer the
Resale Shares which they own, at any time and from time to time, directly
through agents or dealers, in the over-the-counter market, or otherwise, on
terms and conditions determined at the time of sale by the Selling Shareholders
or as a result of private negotiations between buyer and seller. Expenses of
any such resale will be borne by the buyer and seller as they may agree.
The Company's common stock is traded on the Nasdaq Small-Cap Market under
the trading symbol "BICO" and is also reported under the symbol "BIOCNTRL TEC".
THESE SECURITIES INVOLVE A HIGH DEGREE OF RISK AND PROSPECTIVE PURCHASERS
SHOULD CAREFULLY CONSIDER THE FACTORS SPECIFIED UNDER THE CAPTION "RISK
FACTORS".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
ANY SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
THE DATE OF THIS PRELIMINARY PROSPECTUS IS APRIL 21, 1998
[INSIDE FRONT COVER]
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "1934 Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information concerning the Company can be inspected and copied at the
Public Reference Room of the Commission, 450 Fifth Street, N.W. , Washington,
D.C. and at the Commission's regional offices including those located at 601
Walnut Street, Curtis Center, Suite 1005E , Philadelphia, PA 19106-34322; and
75 Park Place, New York, NY. Copies of this material may also be obtained from
the Public Reference section of the Commission, 450 Fifth Street, N.W.
Washington, D.C. 20549, at prescribed rates. The Company's common stock is
traded on the NASDAQ Small Cap Market ("NASDAQ"). In accordance with 1934 Act
requirements, the Company files reports, proxy statements and other information
with NASDAQ. Such reports, proxy statements and other information concerning
the Company can be inspected at NASDAQ's offices located at 1735 K Street N.W.
, Washington D.C., 20006. This Prospectus omits certain information contained
in the Registration Statement and the exhibits relating thereto which the
Registrant has filed with the Securities and Exchange Commission, under the
Securities Act of 1933 (the "1933 Act"), and to which reference is made for
additional information. Descriptions concerning the provisions of any document
are qualified in their entirety by reference to the full text of such document
as filed with the Commission as an exhibit to the Registration Statement.
INCORPORATION BY REFERENCE
The latest financial statements of the Company, as well as other
information regarding the Company and the Common Stock, may be found in other
documents the Company has filed or will file with the Commission. The
following documents are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997.
(b) The Company s Preliminary Proxy Materials filed April 9, 1998.
Until the Company files a post-effective amendment to this Prospectus
indicating that all securities hereunder have been sold, or de-registering all
such securities which remain unsold, all documents subsequently filed by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act shall
be deemed incorporated herein by reference and shall become a part hereof from
the date such documents are filed.
The Company undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus is delivered, upon written or
oral request of such person, a copy of any and all information that has been
incorporated by reference in this Prospectus. Such requests should be made to:
Shareholder Relations Department, Biocontrol Technology, Inc., 2275 Swallow
Hill Road, Building 2500, 2nd Floor, Pittsburgh, PA 15220, by telephone at
412-429-0673 or by fax at 412-279-1367.
Until 90 days after the effective date of this Prospectus, all dealers
effecting transactions in the registered securities, whether or not
participating in this distribution, may be required to deliver a prospectus.
This is in addition to the obligation of dealers to deliver a prospectus when
acting as underwriters and with respect to their unsold allotments or
subscriptions.
THE COMPANY
Biocontrol Technology, Inc. was incorporated in the Commonwealth of
Pennsylvania in 1972 as Coratomic, Inc. and it is referred to herein as "BICO"
or the "Company". BICO's operations are located at 300 Indian Springs Road,
Indiana, Pennsylvania, 15701, telephone number (412)349-1811 and its
administrative offices are located at 2275 Swallow Hill Road, Pittsburgh,
Pennsylvania, 15220, telephone number (412)429-0673.
The primary business of the Company is the development of new devices
which include models of a noninvasive glucose sensor (the "Noninvasive Glucose
Sensor"), an implantable port for drug delivery and hemodialysis use, a
polyurethane heart valve, procedures relating to the use of whole-body
extracorporeal hyperthermia in the treatment of cancer and the human
immunodeficiency virus ("HIV"), bioremediation products, and a paint product
which is designed to prevent the buildup of certain substances on underwater
surfaces. In addition, the Company is currently manufacturing and selling
functional electrical stimulators. In early 1998, the Company acquired a
majority interest in a company which manufactures and sells metal coating
products.
Forward-Looking Statements
From time to time, the Company may publish forward-looking statements
relating to such matters as anticipated financial performance, business
prospects, technological developments, new products, research and development
activities, the regulatory approval process, specifically in connection with
the FDA marketing approval process, and similar matters. The Private
Securities Litigation Reform Act of 1995 provides a safe harbor for
forward-looking statements. In order to comply with the terms of the safe
harbor, the Company notes that a variety of factors could cause the Company's
actual results to differ materially from the anticipated results or other
expectations expressed in the Company's forward-looking statements. The risks
and uncertainties that may affect the operations, performance, research and
development and results of the Company's business include the following:
additional delays in the research, development and FDA marketing approval of
the Noninvasive Glucose Sensor; delays in the manufacture or marketing of the
Company's other products and medical devices; the Company's future capital
needs and the uncertainty of additional funding; BICO's uncertainty of
additional funding; competition and the risk that the Noninvasive Glucose
Sensor or its other products may become obsolete; the Company's continued
operating losses, negative net worth and uncertainty of future profitability;
potential conflicts of interest; the status and risk to the Company's patents,
trademarks and licenses; the uncertainty of third-party payor reimbursement for
the Sensor and other medical devices and the general uncertainty of the health
care industry; the Company's limited sales, marketing and manufacturing
experience; the amount of time or funds required to complete or continue any of
the Company's various products or projects; the attraction and retention of key
employees; the risk of product liability; the uncertain outcome and
consequences of the lawsuits pending against the Company; the ability of the
Company to maintain a national listing for its common stock; and the dilution
of the Company's common stock.
RISK FACTORS
An investment in the Company's securities is highly speculative and should
not be made by any investor who cannot afford the loss of the entire
investment. In addition to the other information in the Prospectus, the
following risk factors should be considered carefully in evaluating an
investment in the shares offered hereby.
1. Continuing and Future Losses and Cash Flow. The Company has
experienced and continues to experience operating losses due to the costs of
its research and development activities and the absence of commercially
successful products. Without the development of commercially viable products,
such losses will continue. If the products currently under development are not
fully developed, or do not generate sufficient revenues once developed, the
Company will continue to suffer losses. The Company will not be able to
continue its operations for an indefinite period of time if such losses
continue. It is uncertain at this time whether the Company will achieve
profitability in the future. In the event that the Company is unable to
complete the development of, receive the necessary U. S. Food and Drug
Administration ("FDA") approval for, or successfully market the Noninvasive
Glucose Sensor as planned, the Company will incur significant losses and its
ability to continue its operations will be jeopardized. The Company's net
losses were ($29,420,345) in 1995; ($22,395,702) in 1996; and ($24,154,324) in
1997. The Company's accumulated deficit aggregated ($112,770,383) as of
December 31, 1997. The Company estimates that it has the capacity, using
available cash resources, including funds it reasonably expects to be raised by
BICO or its affiliates, to fund BICO's operations through at least December
31, 1998; however, absent additional funding, the Company will have limited
liquidity on a long-term basis. There can be no assurances whether the amount
and timing of the receipt of net proceeds from any future securities Offering,
or additional financing from third parties, will be sufficient to fund the
Company's operations. (SEE, Form 10-K, "MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS").
2. Uncertainty of Additional Funding Required to Meet Future Capital
Needs. The Company will not receive any proceeds from this Offering, except
for the warrant exercise price of $2.00 per share, if the Selling Shareholders
who own such warrant choose to exercise all or part of such warrant. The
Company anticipates that the sources of funds to meet the expenses of its
operations and product development and marketing projects will include sales of
its securities, as well as revenues from its functional electrical stimulator
("FES"), metal-coating products and bioremediation products. Such funds will
not be sufficient, however, to complete all proposed research and development
or manufacturing start-up projects; although the Company does have sufficient
capital to meet its short-term needs, the Company currently does not possess
sufficient capital to meet all of its future capital needs (SEE, Form 10-K,
"MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS").
The Company will require additional capital in order to complete its
Noninvasive Glucose Sensor, heart valve, hyperthermia treatment, bioremediation
and metal-coating projects. The Company anticipates that its other sources of
capital will include additional sales of stock, (SEE, Form 10-K, "MANAGEMENT'S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS"),
private domestic and offshore placements of its securities, bank financing or
joint ventures with other biomedical companies or venture capital firms. There
can be no assurances that the Company will be able to raise capital in a manner
which meets its timing requirements, or on terms which are favorable or
acceptable to the Company. Should the Company meet its future capital needs
via additional sales of stock, further dilution of existing shareholders'
equity and voting power will result. Although the Company and its affiliates
have a history of successful capital-raising efforts, there can be no assurance
that it will be successful in meeting its future capital needs.
3. Uncertainty of Product Development and Lack of Revenues. Research
and development of new products involves a high degree of financial risk and
experimentation. The Company's development projects involve the application of
novel theories, unproven technology and new engineering. The Company's products
are at various stages of development. The Company is pursuing a CE Mark to
sell its Noninvasive Glucose Sensor in Europe. In February, 1996, the FDA's
Panel Review recommended that the Company conduct additional clinical trials
prior to the granting of marketing approval for the Diasensor 1000 . In
March, 1998, the Company acquired a majority interest in a company which
produces metal-coating products, and the Company has started marketing these
products through joint ventures and other distribution agreements. The
bioremediation products have been developed for various uses in water and on
hard surfaces; as to which manufacturing and sales have begun. The functional
electrical stimulators are currently being manufactured pursuant to contracts.
The hyperthermia project has received FDA approval to conduct additional
clinical trials, and if such trials are successful, an FDA application for
marketing the technology will be filed. The Coraflex, Inc. ("Coraflex ") heart
valve and other implantable devices are in various stages of preliminary
development. There can be no assurance that new products currently under
development by the Company ultimately will be developed, and if developed,
there can be no assurance that such new products will be commercially viable
(SEE, Form 10-K, "BUSINESS").
4. Competition. The Company and its affiliates are currently focusing
their efforts on developing biomedical devices including Noninvasive Glucose
Sensors, heart valves and hyperthermia treatment procedures. In addition, the
Company's majority-owned affiliate ICTI, Inc. has developed metal-coating
products, and its subsidiary, Petrol Rem, Inc. ("Petrol Rem"), has developed
bioremediation products. Other research groups and companies are also
researching and developing such technologies, devices and procedures. Those
companies may be further along in their research and development, may be better
capitalized, may have more sophisticated equipment and expertise and may have
various other competitive advantages over the Company. Such other companies
may be able to bring their products to market before the Company, which could
have a substantial negative impact on the Company's plans with respect to
developing technologies and future business prospects.
Although its features are different, the Company's Noninvasive Glucose
Sensor, if successfully developed, will compete with existing invasive glucose
sensors which have an established market with diabetics. In addition, the
Company is aware that other companies are developing noninvasive glucose
sensors, although the Company has very limited knowledge of the status of other
development projects, it is not aware of any other company which has filed for
FDA approval of its device. The Company's metal-coating and bioremediation
products will compete with other groups and companies in their respective
fields, many of which are very large and well-established. The Company's
other products and procedures, which are still in early stages of development,
will also face similar competition if they are successfully developed and
brought to market (SEE, Form 10-K, "Competition").
5. Noninvasive Glucose Sensor Manufacturing Obligation. Pursuant to a
Manufacturing Agreement with Diasense, Inc. ("Diasense"), the Company is
obligated to manufacture the Noninvasive Glucose Sensors if they are approved
for marketing by the FDA. The Company has leased manufacturing space in
Indiana, Pennsylvania, and has undertaken to complete substantial renovations
to make the space usable as its manufacturing facility. The Company has the
right, pursuant to the Manufacturing Agreement, to enlist subcontractors, which
the Company believes will be capable, if necessary, of meeting its
manufacturing obligations until the facility is renovated. Although the Company
has previous manufacturing experience, it has no experience in manufacturing
large commercial quantities and its current manufacturing activities are
limited to the FES and bioremediation projects.
6. Price of Noninvasive Glucose Sensor and Uncertainty of Third Party
Reimbursement. The Company currently estimates that the price of the Diasensor
1000 model of the Noninvasive Glucose Sensor will be substantially in excess
of currently available invasive technology. Such price may be set at a level
which would limit its sales absent third-party reimbursement. The Company is
unable to make projections regarding the availability of or procedures required
in order to obtain such third-party reimbursement. Given the uncertainty of
the state of the health care industry, the risk exists that the sales potential
for the Noninvasive Glucose Sensor would be severely limited in the absence of
such reimbursement (SEE, Form 10-K, "Current Status of the Noninvasive Glucose
Sensor").
7. Dependence on Key Officers. BICO is presently dependent upon the
experience and ability of the following persons: David L. Purdy, its
President, Treasurer and Chairman of the Board; and Fred E. Cooper, its Chief
Executive Officer, Executive Vice President and a director. BICO has key-man
life insurance on both Mr. Purdy and Mr. Cooper.
8. Dependence on Independent Contractors. In experimenting with and
developing new technologies, devices and engineering, the Company and its
affiliates rely upon independent contractors who may not devote full- time
efforts to the development of the Company's projects. Moreover, the Company's
abilities to develop new products depend, in part, upon the evaluation,
coordination and supervision of such independent contractors in areas where the
Company may not possess particular expertise.
9. Technological Obsolescence. The medical device industry is subject
to rapid technological innovation. While the Company's management is not aware
of any new or anticipated technology which would make its new products under
development obsolete, it is always possible that future technological
developments could make the Company's products significantly less competitive
or even obsolete.
10. Dependence on Component Suppliers. The Company's projects may
involve the fabrication of custom, novel or unique component parts for use in
experimentation, testing and development of new devices. Suppliers of such
components may not be readily available, or available at all, which may require
the Company to create such components in-house. Delays in obtaining components
can cause delays in the development process. An inability to obtain or
fabricate components can cause a total failure of the development process.
Although the Company attempts to minimize the reliance on custom components in
designing the devices, unforeseeable problems may arise in the Company's
development processes for which no resolution may be available.
11. Government Regulation and Approval. BICO's and its affiliates'
operations, medical devices and certain other projects are subject to
regulation by the FDA, the Federal Nuclear Regulatory Commission (the "NRC"),
the Environmental Protection Agency (the "EPA") and other federal and state
regulatory agencies. There exists the possibility that FDA and other
regulatory approval may not be obtained for a given product. FDA approval is
required prior to the marketing of the Noninvasive Glucose Sensor in the United
States. A CE Mark is necessary prior to marketing the Noninvasive Glucose
Sensor in Europe, and other foreign countries have their own regulatory
requirements. The FDA review of the Company s 510(k) Notification has resulted
in delays, and no assurance can be given that approval will ultimately be
received. If the FDA does not approve the 510(k) Notification, the Company
will be required to comply with the FDA's pre-market approval process, which is
substantially more time- consuming and expensive. In that event, the Company
would require additional capital to meet such expenses, and to support its
operations until the Noninvasive Glucose Sensor can be marketed (SEE, Form
10-K, BUSINESS ).
The EPA, through the National Environmental Technology Applications
Corporation ("NETAC"), conducted the testing of the Company's bioremediation
PRP product. The EPA monitors the use of bioremediation products, and there can
be no assurances that EPA procedures will not delay the use of or cause
modifications to any given product (SEE, Form 10-K, "BUSINESS").
12. Patents and Proprietary Rights. The Company holds patents on some of
its products, as well as trademarks on the names of some of its products and
procedures. In addition, Diasense holds patents, and has patent applications
pending on the Noninvasive Glucose Sensor. Both BICO and Diasense may
undertake to file additional patent applications in the United States and in
foreign countries. Neither BICO nor Diasense can provide assurances that
future patents will be granted, that any patent held or pending will not be
challenged or circumvented by a competitor or other entity, or that any patent
contest will result in a favorable outcome. If any of the Company's or
Diasense's patents are successfully challenged, or if future patents are not
granted, or if BICO or Diasense is found to have infringed upon another
company's patent, it would result in substantial costs and delays in the
Company's product development, and would otherwise result in materially adverse
consequences.
13. Risk of Product Liability Claims. The Company is engaged in
activities which include the testing and selling of biomedical devices. These
activities expose the Company to potential product liability claims. The
Company and its subsidiaries carry an aggregate amount of $500,000 in product
liability insurance. In the event that a successful claim in excess of that
amount is brought against the Company, the Company may be liable for the
excess.
14. Liability Arising From Warranties. BICO has warranted its
conventional pacemakers against defects in materials and workmanship for
periods presently ranging from six to ten years from implantation, and warrants
its isotopic pacemaker for twenty years. The Company is subject to liability in
the event that warranted pacemakers function improperly.
15. No Common Stock Dividends. The Company has not paid cash dividends
on its common stock since its inception and cash dividends are not presently
contemplated at any time in the foreseeable future.
16. Conflicts of Interest. David L. Purdy and Fred E. Cooper are
employed by BICO, and are also officers and/or directors of Diasense, a
52%-owned affiliate of BICO which owns the patents and marketing rights to the
Noninvasive Glucose Sensor. Messrs. Purdy, Cooper, Anthony J. Feola and
Glenn Keeling are also officers and/or directors of BICO and its other
subsidiaries, Coraflex, Petrol Rem, Barnacle Ban Corporation ("Barnacle Ban"),
and IDT, Inc. ("IDT"). Accordingly, management will not only be subject to
competing demands, but may face conflicts of interest. Therefore, the good
faith and integrity of management in all transactions with respect to all of
the companies and their businesses are of utmost importance (SEE, Form 10-K,
"Certain Relationships and Related Transactions").
17. Attraction and Retention of Key Personnel. The Company's ability to
develop commercially viable products and to maintain a competitive position in
a business environment characterized by intense competition and technological
development depends upon, among other factors, its ability to attract and
retain skilled scientific, engineering, management, sales and marketing
personnel. Competition for the services of such personnel is intense, and
there can be no assurance that the Company will be able to attract or retain
the personnel necessary for the Company's success. The loss by the Company of
the services of any of its key personnel could have a material adverse impact
on the business and prospects of the Company. The Company currently does not
have key-man life insurance for any of its employees, other than Mr. Purdy and
Mr. Cooper.
18. Prior Public Market; Listing on Nasdaq, Possible Volatility of Stock
Price. The Company's common stock has been traded publicly since December 1982
and has had a limited number of market makers. The trading volume averaged
7,082,986 shares per week during 1997. There can be no assurances that a more
active or established trading market for the Company's common stock will
develop, or if developed, that it will be maintained. The trading price of the
Company's common stock could fluctuate significantly in response to variations
in quarterly operating results and many other factors. In 1998, the Nasdaq
Small-Cap market instituted new requirements for listing, which include a
minimum price of $1.00 per share. The Company s common stock has been trading
at a price substantially lower than $1.00 per share; if the stock price does
not rise above the minimum requirement, the Company s stock may be no longer be
eligible for trading on the Nasdaq Small-Cap market (SEE, "MARKET PRICE FOR
COMMON STOCK").
19. Dilution. The Resale Shares sold pursuant to this Offering may bear
selling prices which are significantly higher than the common stock's book
value per share. Dilution represents the difference between the amount per
share paid by purchasers pursuant to this Offering and the book value of the
common stock, which may be substantial (SEE, "DILUTION").
USE OF PROCEEDS
The Company will not receive any proceeds from the sale of the shares
registered herein, except for the warrant exercise price of $2.00 per share
which will only be received if the Selling Shareholders choose to exercise all
or part of the warrant. In the event that any such proceeds are received, they
will be used to fund the operations of the Company in the discretion of
management as management deems is in the best interest of the Company.
DILUTION
As of December 31, 1997, the Company's common stock had a net tangible
book value of $4,457,311 or $.032 per share based upon 138,583,978 shares
outstanding. Net tangible book value per share is determined by dividing the
number of shares of common stock outstanding into the Company's total tangible
assets less total liabilities, minority interest and preferred stock. With
respect to the Warrant Shares, net tangible book value dilution represents the
difference between the amount per share paid by purchasers of the Warrant
Shares and the pro-forma net tangible book value per share after the indicated
Warrants have been exercised. No attempt has been made to determine the
dilutive effect, if any, incurred by purchasers of the Resale Shares offered in
this Prospectus.
Warrant Share Dilution Table
Exercise price per Warrant Share:
1,000,000 shares at..................................... $ 2.00
Net tangible book value per share at December 31, 1997
(assuming no Warrants had been exercised). $0.032
Increase in net tangible book value per share
assuming all 1,000,000 $2.00 exercise price
Warrants were exercised $ 0.014
Pro-forma net tangible book value per share
as of December 31, 1997 assuming all
1,000,000 $2.00 exercise price
Warrants were exercised $0.046
Dilution of net tangible book value per share to
purchasers of $2.00 exercise price Warrants: $1.954
CAPITALIZATION
The following table sets forth the capitalization of the Company as of
December 31, 1997 and December 31, 1996. The figures were taken from the
audited financial statements for the years ended December 31, 1997 and December
31, 1996, copies of which are incorporated by reference from the Company's Form
10-K for the year ended December 31, 1997.
(1) (1)
December 31, 1997 December 31, 1996
Shareholders' Equity:
Common Stock, par value $.10 per share;
authorized 300,000,000 shares; shares
issued and outstanding: 138,583,978 at
December 31, 1997 and 49,213,790
at December 31, 1996 $13,858,398 $4,921,379
Additional Paid-in Capital 97,004,067 80,704,749
Note Receivable issued for common stock (25,000) -
Warrants 6,396,994 6,907,162
Accumulated Deficit (112,770,383) (88,616,059)
-------------- ------------
Total Capitalization $ 4,464,076 $3,917,231
============== ============
December 31, 1997 December 31, 1996
(1) Does not include the effects of the
following:
Outstanding Warrants to purchase
common stock granted by the
Company, at exercise prices ranging
from $.25 to $4.03 per share,
expiring 1996 through 2002. 5,346,662 2,905,462
The following table sets forth the capitalization of the Company as of
December 31, 1997 as if 50% of all shares underlying the Warrants being
registered pursuant to this Prospectus were exercised, and as if 100% of all
shares underlying the Warrants being registered pursuant to this Prospectus
were exercised.
December 31, 1997 December 31, 1997
(1) (2)
Shareholders' Equity:
Common Stock, par value $.10 per share;
authorized 300,000,000 shares; shares
issued and outstanding: 138,583,978 at
December 31, 1997 (1). If 50% of
registered Warrants are exercised,
common stock issued and outstanding
at 12/31/97 would be 139,083,978.
If 100% of registered Warrants are
exercised, common stock issued and
outstanding at 12/31/97 would
be 139,583,978. 13,908,398 13,958,398
Additional Paid-in Capital 97,954,067 98,904,067
Note Receivable issued for common stock (25,000) (25,000)
Warrants 6,396,994 6,396,994
Accumulated Deficit (112,770,383) (112,770,383)
------------- -------------
Total Capitalization $ 5,464,076 $ 6,464,076
============= =============
(1) Includes the effects of the exercise of 50% of the 1,000,000 warrants the
shares underlying which are being registered pursuant to this Prospectus.
(2) Includes the effects of the exercise of 100% of the 1,000,000 warrants the
shares underlying which are being registered pursuant to this Prospectus.
MARKET PRICE FOR COMMON STOCK
The Company's common stock is traded on the Nasdaq Small-Cap Market under
the symbol "BICO" and is also reported under the symbol "BIOCNTRL TEC". On
April 15, 1998 the closing price for the common stock of the Company as
reported by Nasdaq was $.094. Pursuant to current disclosure guidelines, the
following table sets forth the high and low sales prices for the common stock
of the Company during the calendar periods indicated, through December 31,
1997, as reported by Nasdaq:
Calendar Year and Quarter High Low
1995 First Quarter 2.719 1.500
Second Quarter 4.689 2.375
Third Quarter 4.125 3.000
Fourth Quarter 6.438 2.688
1996 First Quarter 3.9375 1.500
Second Quarter 3.0625 1.406
Third Quarter 2.969 1.625
Fourth Quarter 2.4375 .656
1997 First Quarter 1.500 .625
Second Quarter 1.000 .3125
Third Quarter .719 .3125
Fourth Quarter .406 .0937
As of December 31, 1997 the Company had approximately 29,000 holders,
including those who hold in street name, for its common stock and no holders of
record for its preferred stock.
Nasdaq has revised its requirements for companies listed on its Small-Cap
market. Such requirements, which include a minimum trading price of $1.00,
will limit the Company s option to continue to trade on Nasdaq.
DESCRIPTION OF SECURITIES
BICO's authorized capital currently consists of 300,000,000 shares of
common stock, par value $.10 per share and 500,000 shares of cumulative
preferred stock, par value $10.00 per share. As of March 31, 1998, there were
192,724,748 shares of common stock and zero shares of preferred stock
outstanding. In addition, there were $3,900,000 of the Company's 4% Convertible
Debentures outstanding as of March 31, 1998. In April, 1998, the Company filed
a Preliminary Proxy Statement requesting that its shareholders approve the
authorization of an additional 300,000,000 shares of common stock, along with a
reverse stock split, if necessary (SEE, PRELIMINARY PROXY MATERIALS,
incorporated herein by reference).
Preferred Stock
The Articles of Incorporation of BICO authorize the issuance of a maximum
of 500,000 shares of non-voting cumulative convertible preferred stock, and
authorize the Board of Directors of BICO to divide such class of preferred
stock into series and to fix and determine the relative rights and preferences
of the shares.
As of March 31, 1998, the Company had no outstanding shares of preferred
stock.
Common Stock
All outstanding shares of the Company's common stock are fully paid and
nonassessable. All shares of common stock to be received by holders will be
fully paid and nonassessable. All the shares of common stock will be equal to
each other with respect to liquidation rights and dividend rights and there are
no preemptive rights to purchase any additional shares of common stock.
Holders of common stock are entitled to one vote per share on all matters
submitted to a vote of shareholders, but are not entitled to cumulate their
votes in the election of directors. Accordingly, the holders of over 50% of the
outstanding common stock voting for the election of directors, could elect the
entire slate of the Board of Directors of BICO, and the holders of the
remaining common stock would not be able to elect any member to the Board of
Directors. As of March 31, 1998, there were 192,724,748 shares of common
stock outstanding. In April 1998, the Company filed a Preliminary Proxy
Statement asking the shareholders to approve the authorization of an additional
300,000,000 shares of common stock, along with a reverse stock split, if
necessary. Such Proxy Materials are incorporated herein by reference and must
be reviewed.
In the event of liquidation or dissolution of BICO, holders of the common
stock are entitled to receive on a pro rata basis all assets of BICO remaining
after satisfaction of all liabilities including liquidation preferences granted
to holders of the preferred stock of BICO.
Convertible Debentures
As of March 31, 1998, the Company had outstanding $3,900,000 in
Convertible Debentures, which are due between February 10, 1999 and March 26,
1999.
Dividends
The Company has not paid cash dividends on its common stock or preferred
stock (with the exception of a cash dividend on its preferred stock in 1983,
and a common stock dividend on its preferred stock in 1988) since its
inception, and cash dividends are not presently contemplated at any time in the
foreseeable future. The Company anticipates that any excess funds generated
from operations in the foreseeable future will be used for working capital and
for investment in research and new product development, rather than to pay
dividends.
In accordance with the Company's Articles of Incorporation, cash dividends
are restricted under certain circumstances. Holders of common stock are
entitled to cash dividends only when and if declared by the Board of Directors
out of funds legally available for payment thereof. Any such dividends are
subject to the prior right of holders of the Company's preferred stock to
receive any accrued but unpaid dividends. Further, common stock dividends may
be paid only to the extent the net assets of BICO exceed the liquidation
preference of any outstanding preferred stock.
Employment Agreement Provisions Related to Changes in Control
BICO has entered into agreements (the "Agreements") with Fred E. Cooper,
David L. Purdy, Anthony J. Feola, Glenn Keeling, and two non-executive officer
employees. The Agreements provide that in the event of a "change of control"
of BICO, BICO is required to issue to Mr. Cooper and Mr. Purdy shares of common
stock equal to five percent (5%), to issue to Mr. Feola four percent (4%), to
issue Mr. Keeling three percent (3%), and to issue the two non-executive
officer employees two percent (2%) each of the outstanding shares of common
stock of the Company immediately after the change in control. In general, a
"change of control" is deemed to occur for purposes of the Agreement: (i) when
20% or more of BICO's outstanding voting stock is acquired by any person, (ii)
when one-third (1/3) or more of BICO's directors are not Continuing Directors
(as defined in the Agreements), or (iii) when a controlling influence over the
management or policies of BICO is exercised by any person or by persons acting
as a group within the meaning of Section 13(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
Warrants
March 31, 1998, there were outstanding warrants to purchase 7,686,662
shares of the Company's common stock at exercise prices of between $0.25 and
$4.03 per share. These warrants are held by members of the Company's
Scientific Advisory Board, certain employees, officers, directors, loan
guarantors, lenders and consultants.
The holders of warrants are not entitled to vote, to receive dividends or
to exercise any of the rights of the holders of shares of common stock for any
purpose until such warrants have been duly exercised and payment of the
exercise price has been made.
Transfer Agent
Chase-Mellon Shareholder Services in New York, New York acts as the
Company's Registrar and Transfer Agent for its common and preferred stock. The
Company acts as its own warrant transfer agent.
SELLING SHAREHOLDERS
This Prospectus covers the shares of Common Stock which may be offered by
the Selling Shareholders set forth below.
Number of Shares Shares Covered by Percent of
Beneficially Owned this Prospectus Ownership
as of April 15, 1998 After Offering (3)
Name of Beneficial Owner
Resale
Number Percent(1) Shares (2)
RESALE SHAREHOLDERS
Jones, Farrell B. 3,000,000 (5) 1.5% 3,000,000 *
and Brenda K.(4)
________________________
(1) Percentage of ownership of each individual or entity shown when compared
to the total number of shares of common stock outstanding as of March 31,
1998. An asterisk indicates that the percentage of ownership is less than
1%.
(2) Shares owned by the shareholder, the resale of which is offered for the
account of such shareholder pursuant to this Prospectus.
(3) Percentage of ownership of each individual or entity shown assuming all
shares registered pursuant to this Prospectus are sold, when compared to
the total number of shares of common stock outstanding as of March 31,
1998. An asterisk indicates that the percentage of ownership would be
less than 1%.
(4) Includes common stock and warrants to purchase common stock issued
pursuant to the Company s purchase of a majority interest in ICTI , Inc.
(5) Comprised of 2,000,000 shares of common stock currently owned by Selling
Shareholders and warrants to purchase 1,000,000 shares of common stock at
$2.00 per share until March 4, 2003 which are currently exercisable and
owned by Selling Shareholders.
PLAN OF DISTRIBUTION
The Common Stock offered hereby by the Selling Shareholders (the "Resale
Shares") may be sold from time to time in one or more transactions at a fixed
offering price, at varying prices determined at the time of sale or at
negotiated prices. Such sales may be made to purchasers directly by the
Selling Shareholders or, alternatively, the Selling Shareholders may offer the
Resale Shares through dealers, brokers or agents, who may receive compensation
in the form of concessions or commissions from the Selling Shareholders and/or
the purchasers of the Resale Shares for whom they may act as agents. The
Selling Shareholders and any dealers, brokers or agents that participate in the
distribution of Resale Shares may be deemed to be underwriters, and any profits
on the sale of the Resale Shares by them and any discounts or commissions
received by any such dealers, brokers or agents may be deemed to be
underwriting discounts and commissions under the 1933 Act.
To the extent required at the time a particular offer of the Resale Shares
by the Selling Shareholders is made, a supplement to this Prospectus will be
distributed which will set forth the number of Resale Shares being offered and
the terms of the offering, including the name or names of any underwriters,
dealers, brokers or agents, the purchase price paid by any underwriter for the
Resale Shares purchased from the Selling Shareholders, and any discounts,
commissions, or concessions allowed or reallowed to dealers, including the
proposed selling price to the public.
SHARES ELIGIBLE FOR FUTURE SALE
So long as the Registration Statement concerning this offering is
effective under the 1933 Act and the Company remains current in its information
filing requirements under Rule 144, promulgated under the 1933 Act,
substantially all of the Resale Shares will be freely transferable, or freely
transferable upon issuance in the case of shares issuable upon exercise of the
Warrants, without restriction or further registration under the 1933 Act,
unless acquired by an affiliate of the Company. "Affiliates" of the Company
generally would include the directors and executive officers of the Company and
any other person or entity which controls, is controlled by, or is under common
control with, the Company. Affiliates who acquire common stock pursuant to
this Prospectus will continue to be subject to the volume restrictions of Rule
144, as set forth below.
In general, under Rule 144 as currently in effect, an affiliate of the
Company and any person (or persons whose shares are aggregated) who has
beneficially owned Restricted Shares for at least two years would be entitled
to sell within any three-month period a number of shares which does not exceed
the greater of ( i ) one percent (1%) of the then outstanding shares of common
stock of the Company, or (ii) the average weekly trading volume of the common
stock on the open market during the four calendar weeks preceding such sale.
Rule 144 also requires such sales to be placed through a broker or with a
market maker on an unsolicited basis and requires that there be adequate
current public information available concerning the Company. A person who is
deemed not to have been an affiliate of the Company at any time during the
three months preceding a sale, and who has beneficially owned the Restricted
Shares for at least two years, would be entitled to sell such shares under Rule
144(k) without regard to any of the limitations discussed above immediately
following the commencement of this offering. Restricted Shares properly sold
in reliance upon Rule 144 are thereafter freely tradable without restriction or
registration under the 1933 Act, unless thereafter held by an affiliate of the
Company.
The Company can make no prediction as to the effect, if any, that sales of
shares of common stock or the availability of shares for sale will have on the
market price prevailing from time to time. Nevertheless, sales of substantial
amounts of common stock in the public market could adversely affect the
prevailing market price of the common stock.
LEGAL PROCEEDINGS
In April, 1998, the Company and its affiliates were served with requests
for information from the U.S. Justice Department. The Company has retained
counsel to assist with this matter, and is currently accumulating documents to
respond to the requests (SEE also, Form 10-K "Legal Proceedings").
INTERESTS OF NAMED EXPERTS AND COUNSEL
The validity for the issuance of the Warrant Shares or Resale Shares
offered hereby will be passed upon for the Company by Sweeney & Associates
P.C., Pittsburgh, Pennsylvania. Thomas E. Sweeney, Jr., Esq., the President of
Sweeney & Associates P.C., currently holds warrants to purchase the following
shares of the common stock of Diasense, an affiliate of the Company: 40,000
shares at $.50 per share until October 23, 2000 and 60,000 shares at $1.00 per
share until January 6, 2000.
EXPERTS
The financial statements of the Company as of December 31, 1997, 1996 and
1995 (which reports included an explanatory paragraph referring to an
uncertainty regarding the Company's ability to continue as a going concern),
incorporated by reference in this Prospectus, have been audited by Thompson
Dugan, independent certified public accountants, as stated in their report
appearing in the Company's Form 10-K for the year ended December 31, 1997 and
has been so included in reliance upon such report given upon the authority of
that firm as experts in auditing and accounting.
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as set forth herein, the Company has no provisions for the
indemnification of its officers, directors or control persons. David L. Purdy,
Fred E. Cooper, Anthony J. Feola and Glenn Keeling have employment contracts
which include indemnification provisions which indemnify them to the extent
permitted by law. The Company and its affiliates, Diasense, Coraflex, Petrol
Rem, Barnacle Ban, Nu-Insulin and IDT are incorporated under the Business
Corporation Law of the Commonwealth of Pennsylvania. Section 1741, et seq. of
said law, in general, provides that an officer or director shall be indemnified
against reasonable and necessary expenses incurred in a successful defense to
any action by reason of the fact that he serves as a representative of the
corporation, and may be indemnified in other cases if he acted in good faith
and in a manner he reasonably believed was in, or not opposed to, the best
interests of the corporation, and if he had no reason to believe that his
conduct was unlawful, except that no indemnification is permitted when such
person has been adjudged liable for recklessness or misconduct in the
performance of his duty to the corporation, unless otherwise permitted by a
court of competent jurisdiction.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 1933 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.
No dealer, salesman or other person has |
been authorized to give any information or to |
make any representation other than those |
contained in this Prospectus and, if given or |
made, such information or representation must | 3,000,000 Shares
not be relied upon as having been authorized by |
the Company, the selling shareholders or any | Biocontol Technology Inc.
underwriter. Neither the delivery of this |
Prospectus nor any sale made hereunder shall, | Common Stock
under any circumstances, create any implication |
that there has been no change in the affairs of |
the Company since the date of this Prospectus. | -------------------------
This Prospectus does not constitute an offer to | P R O S P E C T U S
sell or solicitation of an offer to buy any | -------------------------
securities offered hereby in any jurisdiction in |
which such offer or solicitation is not qualified| April 21, 1998
to do so or to anyone to whom it is unlawful to |
make such offer or solicitation. |
__________________________
TABLE OF CONTENTS
Page
Prospectus Delivery
Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Incorporation by Reference . . . . . . . . . . . . . . . . . . . . . . . ii
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Risk Factors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Dilution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Market Price for Common Stock. . . . . . . . . . . . . . . . . . . . . . .8
Description of Securities. . . . . . . . . . . . . . . . . . . . . . . . .8
Selling Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Shares Eligible for Future
Sale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Legal Proceedings . . . . . . . . . . . . . . . . . . .
12
Interests of Named
Experts and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Indemnification of Directors
and Officers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth the Company's estimated expenses incurred in
connection with the issuance and distribution of the securities described in
the Prospectus other than underwriting discounts and commissions:
Printing and Copying $ 500.00
Legal Fees 5,000.00
SEC Registration Fees 115.00
State Filing Fees 2,500.00
Accounting Fees 2,000.00
Total $10,115.00
INDEMNIFICATION OF DIRECTORS AND OFFICERS
Except as set forth herein, the Company has no provisions for the
indemnification of its officers, directors or control persons. David L. Purdy,
Fred E. Cooper, Anthony J. Feola and Glenn Keeling have employment contracts
which include indemnification provisions which indemnify them to the extent
permitted by law. The Company and its affiliates Diasense, Inc., Coraflex,
Inc., Petrol Rem, Inc., and IDT, Inc. are incorporated under the Business
Corporation Law of the Commonwealth of Pennsylvania. Section 1741, et seq. of
said law, in general, provides that an officer or director shall be indemnified
against reasonable and necessary expenses incurred in a successful defense to
any action by reason of the fact that he serves as a representative of the
corporation, and may be indemnified in other cases if he acted in good faith
and in a manner he reasonably believed was in, or not opposed to, the best
interests of the corporation, and if he had no reason to believe that his
conduct was unlawful, except that no indemnification is permitted when such
person has been adjudged liable for recklessness or misconduct in the
performance of his duty to the corporation, unless otherwise permitted by a
court of competent jurisdiction.
Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been informed that in
the opinion of the Commission such indemnification is against public policy as
expressed in the 1933 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.
RECENT SALES OF UNREGISTERED SECURITIES
The Company recently completed sales of unregistered securities as
summarized below. Unless otherwise indicated, all offers and sales were made
pursuant to the "private offering" exemption under Section 4(2) of the 1933
Act. Accordingly, because the shares sold constitute "restricted securities"
within the meaning of Rule 144 under the 1933 Act, stop-transfer instructions
were given to the transfer agent, and the stock certificates evidencing the
shares bear a restrictive legend.
During 1996 through March 1998, the Company entered into agreements with
several entities which agreed to use their best efforts to sell the Company's
common stock to foreign investors subject to the requirements set forth in
Regulation S of the Securities Act of 1933 ("Regulation S"). Such entities,
which most recently included J.P. Carey, Inc. undertook to ensure compliance
with Regulation S, which among other things, limits a foreign investor's
ability to trade the Company's stock in the United States. In addition to
sales of common stock pursuant to Regulation S, the Company has also sold
convertible preferred stock and convertible debentures, of which $3.9 million
were outstanding as of March 31, 1998. The debentures mandatorily convert to
common stock at prices which are discounted to the market price, but cannot be
converted for periods of 45 to 90 days following the purchase of the
debentures; such holding periods were enforced via the use of stop transfer
instructions and other notices. The following funds were raised pursuant to
Regulation S offerings during the years noted: approximately $21.6 million in
1996 and approximately $22 million in 1997. Proceeds of the sales were used to
continue to fund the Company's research and development projects and to provide
working capital for the Company.
UNDERTAKINGS
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; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed 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 that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes 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 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to 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.
The undersigned registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forth the results of
the subscription offer and the terms of any subsequent reoffering thereof. If
any public offering is to be made on terms differing from those set forth on
the cover page of the prospectus, a post-effective amendment will be filed to
set forth the terms of such offering.
EXHIBIT TABLE
Exhibit Sequential Page No.
3.1 (4) Articles of Incorporation as filed March 20, 1972 . . . . N/A
3.2 (4) Amendment to Articles filed May 8, 1972 . . . . . . . . . N/A
3.3 (4) Restated Articles filed June 19, 1975 . . . . . . . . . . N/A
3.4 (4) Amendment to Articles filed February 4, 1980. . . . . . . N/A
3.5 (4) Amendment to Articles filed March 17, 1981. . . . . . . . N/A
3.6 (4) Amendment to Articles filed January 27, 1982. . . . . . . N/A
3.7 (4) Amendment to Articles filed November 22, 1982 . . . . . . N/A
3.8 (4) Amendment to Articles filed October 30, 1985. . . . . . . N/A
3.9 (4) Amendment to Articles filed October 30, 1986. . . . . . . N/A
3.10(4) By-Laws . . . . . . . . . . . . . . . . . . . . . . . . . N/A
3.11(5) Amendment to Articles filed December 28, 1992 . . . . . . N/A
5.1 Legal Opinion of Sweeney & Associates
P.C
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10.1(1) Manufacturing Agreement . . . . . . . . . . . . . . . . . N/A
10.2(1) Research and Development Agreement. . . . . . . . . . . . N/A
10.3(1) Termination Agreement . . . . . . . . . . . . . . . . . . N/A
10.4(1) Purchase Agreement. . . . . . . . . . . . . . . . . . . . N/A
10.5(2)
Sublicensing
Agreement and Amendments thereto. . . . . . . . . . . . . . . . . . . . N/A
10.6(3) Lease Agreement with 300 Indian Springs Partnership . . . N/A
10.7(4) Lease Agreement with Indiana County . . . . . . . . . . . N/A
10.8(5) First Amendment to Purchase Agreement dated
December 8, 1992 . . . . . . . . . . . . . . . . . . . . . . . N/A
10.9(6) Fred E. Cooper Employment Agreement dated 11/1/94 . . . . N/A
10.10(6) David L. Purdy Employment Agreement dated 11/1/94. . . . . . . N/A
10.11(6) Anthony J. Feola Employment Agreement dated 11/1/94. . . . . . N/A
10.12(6) Glenn Keeling Employment Agreement dated 11/1/94 . . . . . . . N/A
16.1(7) Disclosure and Letter Regarding Change in
Certifying Accountants dated 1/25/95 . . . . . . . . . . . . . N/A
24.1 Consents of Thompson Dugan, Independent Certified
Public Accountants . . . . . . . . . . . . . . . . . . . . . . .26
24.2 Consent of Counsel (Included in Exhibit 5.1 above) . . . . . . .24
25.1 Power of Attorney of Fred E. Cooper. . . . . . . . . . . . . . .23
(included under "Signatures")
(1) Incorporated by reference from Exhibit with this title filed with the
Company's Form 10-K for the year ended December 31, 1991
(2) Incorporated by reference from Exhibit with this title to Form 8-K dated
May 3, 1991
(3) Incorporated by reference from Exhibit with this title to Form 10-K for
the year ended December 31, 1990
(4) Incorporated by reference from Exhibits with this title to Registration
Statement on Form S-1 filed on December 1, 1992
(5) Incorporated by reference from Exhibits with this title to Amendment No. 1
to Registration Statement on Form S-1 filed on February 8, 1993 (6)
Incorporated by reference from Exhibit with this title to Form 10-K for
the year ended December 31, 1994
(7) Incorporated by reference from Exhibit with this title to Form 8-K dated
January 25, 1995
Exhibit 25.1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned on April 21, 1998.
BIOCONTROL TECHNOLOGY, INC.
By: /s/ Fred E. Cooper
------------------------------
Fred. E. Cooper, Director, CEO,
(principal executive officer, principal financial
officer, and principal accounting officer)
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature
appears below constitutes and appoints Fred E. Cooper his true and lawful
attorney-in-fact and agent with full power of substitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration
Statement, and to file the same with all exhibits thereto, and all documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and perform
each and every act and thing requisite and necessary to be done in and about
the premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on the dates indicated.
Signature Title Date
/s/ David L. Purdy President, April 21, 1998
David L. Purdy Treasurer, Director
/s/ Anthony J. Feola Senior Vice President, April 21, 1998
Anthony J. Feola Director
/s/ Glenn Keeling Director April 21, 1998
Glenn Keeling
/s/ Richard Bourett Director April 21, 1998
Richard Bourett
/s/ Stan Cottrell Director April 21, 1998
Stan Cottrell
SWEENEY & ASSOCIATES P.C.
ATTORNEYS AT LAW
7300 PENN AVENUE TELEPHONE (412) 731-1000
PITTSBURGH, PA 15208 FACSIMILE (412) 731-9190
April 21, 1998
To the Board of Directors
Biocontrol Technology, Inc.
2275 Swallow Hill Road
Building 2500; 2nd Floor
Pittsburgh, PA 15220
Gentlemen:
We have examined the corporate records and proceedings of Biocontrol
Technology, Inc, a Pennsylvania corporation (the "Company"), with respect to:
1. The organization of the Company;
2. The legal sufficiency of all corporate proceedings of the Company
taken in connection with the creation, issuance, the form and
validity, and full payment and non- assessability , of all the
present outstanding and issued common stock of the Company; and
3. The legal sufficiency of all corporate proceedings of the Company,
taken in connection with the creation, issuance, the form and
validity, and full payment and non- assessability , when issued, of
shares of the Company's common stock (the "Shares"), to be issued by
the Company covered by the registration statement (hereinafter
referred to as the "Registration Statement") filed with the
Securities and Exchange Commission April 21, 1998, file number
33-______ (in connection with which Registration Statement this
opinion is rendered.)
We have also examined such other documents and such questions of law as we
have deemed to be necessary and appropriate, and on the basis of such
examinations, we are of the opinion:
(a) That the Company is duly organized and validly existing under the
laws of the Commonwealth of Pennsylvania;
(b) That the Company is authorized to have outstanding 300,000,000 shares
of common stock of which 192,724,748 shares of common stock were
outstanding as of March 31, 1998;
(c) That the Company has taken all necessary and required corporate
proceedings in connection with the reation and issuance of the
said presently issued and outstanding shares of common stock and
that all of said stock so issued and outstanding has been
validly issued, is fully paid and non-assessable, and is in
proper form and valid;
(d) That when the Registration Statement shall have been declared
effective by order of the Securities and Exchange Commission, after a
request for acceleration by the Company, and the Shares shall have
been issued and sold upon the terms and conditions set forth in the
Registration Statement, then the Shares will be validly authorized
and legally issued, fully paid and non-assessable.
We hereby consent (1) to be named in the Registration Statement, and in
the Prospectus which constitutes a part thereof, as the attorneys who will pass
upon legal matters in connection with the sale of the Shares, and (2) to the
filing of this opinion as Exhibit 5.1 of the Registration Statement.
Sincerely,
SWEENEY & ASSOCIATES P.C.
Exhibit 24.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated March 25, 1998 accompanying the consolidated
financial statements of Biocontrol Technology, Inc. and subsidiaries appearing
in the 1997 Annual Report on Form 10-K for the year ended December 31, 1997
which is incorporated by reference in this Registration Statement on Form S-3.
We consent to the incorporation by reference in the Registration Statement of
the aforementioned report and to the use of our name as it appears under the
caption "EXPERTS". Our report on the consolidated financial statements
referred to above includes an explanatory paragraph which discusses going
concern considerations as to Biocontrol Technology, Inc.
/s/ Thompson Dugan
Pittsburgh, Pennsylvania
April 21, 1998