AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2, 2003
REGISTRATION NO. 333-[__]
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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LIFEPOINT, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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DELAWARE 33-0539168
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
1205 SOUTH DUPONT STREET
ONTARIO, CALIFORNIA 91761
(909) 418-3000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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AGENT FOR SERVICE: COPIES TO:
LINDA H. MASTERSON DAVID A. HAHN, ESQ.
CHIEF EXECUTIVE OFFICER LATHAM & WATKINS LLP
LIFEPOINT, INC. 701 B STREET, SUITE 2100
1205 SOUTH DUPONT STREET SAN DIEGO, CALIFORNIA 92101
ONTARIO, CALIFORNIA 91761 (619) 236-1234
(909) 418-3000
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Approximate date of commencement of proposed sale to the public: From time to
time after the effective date 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 of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, 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. |_|
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT PROPOSED MAXIMUM OFFERING PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED TO BE REGISTERED(1) PRICE PER SHARE(2) OFFERING PRICE(2) REGISTRATION FEE
---------------- ------------------- ------------------ ----------------- ----------------
Common Stock, $.001 par 175,870,488 $0.49 $86,176,539 $7,928
value per share
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(1) A portion of the shares covered by this Registration Statement are
issuable upon conversion of preferred stock and exercise of outstanding
warrants. Pursuant to Rule 416(b) under the Securities Act of 1933,
this Registration Statement shall also cover any additional shares of
the Registrant's common stock that become issuable upon the conversion
of preferred stock and the exercise of warrants by reason of any stock
dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the
Registrant's outstanding shares of common stock.
(2) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) based on the average of the high and low
reported sales prices on the American Stock Exchange on September 29,
2003.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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2
SUBJECT TO COMPLETION--DATED OCTOBER 2, 2003
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT A SOLICITATION OF AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
175,870,488 SHARES
LIFEPOINT, INC.
COMMON STOCK
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The stockholders named on page 19 are selling up to 175,870,488 shares of our
common stock.
Our common stock is listed on the American Stock Exchange under the symbol
"LFP." On September 30, 2003, the last sale price of our common stock as
reported on the American Stock Exchange was $0.42.
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THIS INVESTMENT INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD PURCHASE SHARES OF
OUR COMMON STOCK ONLY IF YOU CAN SUSTAIN A COMPLETE LOSS OF YOUR INVESTMENT. SEE
"RISK FACTORS" BEGINNING ON PAGE 8 FOR FACTORS THAT YOU SHOULD CONSIDER BEFORE
INVESTING IN THE SHARES OF OUR COMMON STOCK.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THE PROSPECTUS.
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THE DATE OF THIS PROSPECTUS IS , 2003.
3
TABLE OF CONTENTS
Page
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Summary. 5
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Risk Factors 8
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Special Note Regarding Forward Looking Statements 15
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Use of Proceeds 16
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Selling Stockholders 16
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Plan of Distribution 28
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Legal Matters 29
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Experts 29
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Where to Find Additional Information 29
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4
The terms "LifePoint," "Company," "we," "our," "ours" and "us" refer to
LifePoint, Inc. and our consolidated subsidiaries, unless the context requires
otherwise, and not to the selling stockholders. All references to "common stock"
refer to our common stock, $.001 par value per share.
SUMMARY
Because the following is a summary, it does not contain all of the
information that may be important to you as a prospective purchaser of shares of
our common stock from a selling stockholder. You should read this entire
prospectus carefully, including the risk factors beginning on page 8 of this
prospectus, and the periodic reports filed by us pursuant to the Securities
Exchange Act of 1934, before you decide to purchase any shares of our common
stock. You may find a list of our current periodic reports under the caption
"Where to Find Additional Information" in this prospectus.
KEY QUESTIONS AND ANSWERS.
1. WHO ARE WE?
We, LifePoint, Inc., are a Delaware corporation, with our corporate
office and manufacturing plant at 1205 South Dupont Street, Ontario, California
91761. Our research and development facility is located at 10400 Trademark
Street, Rancho Cucamonga, California 91730. Our telephone number is (909)
418-3000. You should make inquiries relating to this prospectus to Donald
Rutherford, our Chief Financial Officer, by writing to him at our corporate
office in Ontario, California or by calling him at (909) 418-3000.
2. WHAT BUSINESS ARE WE IN?
We have developed, are manufacturing and have now started marketing a
saliva-based, on-site diagnostic test system that initially tests simultaneously
for drugs of abuse and alcohol. We have identified 11 markets for our initial
products. However, our initial focus is:
o law enforcement/criminal justice for testing of drivers and
suspects and for use in drug courts and in probation and
parole hearings,
o the industrial workplace for pre-employment and employee
testing, and
o for emergency medical diagnostic applications.
Our first product, the IMPACT(R) TEST SYSTEM, uses technology licensed
to us from the United States Navy and our own patented technologies. The IMPACT
TEST SYSTEM uses a person's saliva to test on-site for the presence of alcohol
and drugs of abuse, such as cocaine, heroin and marijuana. Our proprietary
system consists of a small instrument with integrated software to automatically
process the sample collection, test the sample and generate hardcopy test
results. It requires a fully contained disposable saliva test module that
consists of a mouthpiece for collecting the sample, which is connected to a test
cassette that serves as an automatic sample collection device, sample processing
and reaction/read chamber for up to ten different test analyses. Our initial
target market is law enforcement and we expect that our subsequent target
markets will be the industrial workplace and medical emergency rooms.
On February 26, 2002 we released the IMPACT TEST SYSTEM for sale to
international and domestic forensic markets. Since its release there have been a
number of engineering improvements and retrofitting of the products in the
field. We are initially marketing the product in the United States in markets
not regulated by the Food and Drug Administration (the "FDA"), such as law
enforcement and criminal justice testing, and in Europe and certain Asian
countries where no FDA clearance is required. We will only be able to commence
marketing of the product in the United States FDA regulated markets, such as
medical markets, when FDA clearance is obtained. We anticipate clearance to
occur shortly after we respond to FDA clarification questions. Usually, FDA
510(k) clearance takes approximately 100 days (based on the current experience
of other companies with the FDA) after completion of submissions. We have begun
the submission process with the FDA and we intend to apply for a total of at
least nine separate FDA clearances. Six submissions have been initiated to date.
The timing for our marketing launch to the industrial market in the United
States, as indicated elsewhere in this prospectus, will be dependent on whether
FDA approval is required. As indicated elsewhere in this prospectus, we cannot
assure you that we will meet any and all of these deadlines to launch marketing
of our initial product in other markets.
5
In the future, we plan, as our research and development efforts
continue, to make our non-invasive on-site diagnostic device available for other
uses. Potential uses include long-term therapeutic drug monitoring, rapid
diagnostic testing, disease-state testing and wellness/health screening.
3. WHAT IS OUR RECORD OF REVENUES AND EARNINGS?
As of June 30, 2003, we had an accumulated deficit of $60,426,253.
Until recently, when we initiated manufacturing and sales, we had devoted
substantially all of our resources to research and development and have
experienced an ongoing deficiency in working capital. During fiscal 2003 we
recognized revenues of $49,000 from the sales of the IMPACT TEST SYSTEM
instruments and Saliva Test Modules. While we believe we have met the criteria
of SAB 101, due to delays in receiving payments on some of our initial product
shipments, we have elected to record revenue related to shipments made during
the year ended March 31, 2003 only to the extent the related cash has been
collected. Accordingly, we anticipate that our operational losses will continue
for at least five additional quarters, if not longer.
4. DO WE NEED ANY GOVERNMENTAL APPROVALS TO BEGIN MARKETING?
For us to market our testing device to hospitals and other medical
facilities in the United States, we must first obtain clearance from the FDA. We
have made our initial submission of data to the FDA for clearance of our product
and currently expect to complete the remainder of our submission during the
quarter ending December 31, 2003. Based on the current average experiences of
other companies as tracked by an industry group, we expect to get such clearance
approximately 100 days later. However, we could be delayed in completing our
submission. In addition, the FDA may not clear the product when submitted. In
addition, even if this agency clears our product, we may receive this clearance
later than we anticipate.
Based on the FDA's regulations proposed in November 2000, we may also
require FDA approval to sell to the industrial market in the United States.
Several industry groups are currently attempting to dissuade the FDA from
finalizing this policy. However, we are simultaneously collecting clinical data
in the event that we have to make an application to the FDA for clearance at the
same time as we make our application for medical use as described in the
preceding paragraph.
We do not require any governmental approvals to market the IMPACT TEST
SYSTEM to law enforcement agencies in the United States.
For our entry into the four initial target international markets in
Canada, Western Europe, Australia and some Asian countries, we do not require
any pre-entry approval from a governmental agency similar to that which we must
obtain from the FDA in the United States as described above. There are, however,
certain certifications which we must obtain to market successfully in some
countries outside the United States. We have initiated our applications to
obtain CSA (Canada) and CE Mark (Europe) certifications for these countries, as
we have for U.L. certification in the United States. We have also implemented
actions at our manufacturing plant to follow Quality System Regulation as
prescribed by the FDA (for the United States medical markets only) and 1S0
certification for European sales. We are of the opinion that obtaining the
certifications described in this paragraph will not delay our marketing in our
initial target markets in these countries outside the United States.
5. WHAT SECURITIES ARE WE OFFERING PURSUANT TO THIS PROSPECTUS?
We are not offering any securities pursuant to this prospectus. Persons
or entities who or which acquired units in our private placement of Series D
preferred stock and warrants pursuant to Regulation D under the Securities Act
of 1933 will make substantially all of the sales of shares of our common stock
pursuant to this prospectus. These units consisted of shares of our Series D
preferred stock (which shares are convertible into shares of our common stock)
and warrants (which are exercisable into shares of our common stock). We held
two closings with respect to this offering, the first on July 14, 2003, and the
second on September 22, 2003. We do not intend to offer or sell any additional
units.
An entity exercising a warrant will sell other shares of our common
stock pursuant to this prospectus. These warrants were granted as partial
compensation for service as a placement agent in the private placement described
in the preceding paragraph.
6
In addition, persons or entities holding shares of our Series C
preferred stock will sell shares of our common stock issued as payment of
premium. Some of the persons or entities holding shares of our Series C
preferred stock will also be selling shares of our common stock that they will
receive upon a change in the conversion rate of our Series C preferred stock
from $3.00 per share to $0.30 per share as a result of their participation in
the Series D private placement.
All of these persons or entities (including certain transferees)
selling shares of our common stock pursuant to this prospectus will be referred
to herein as the "selling stockholders." They are named in the list beginning on
page 19 of this prospectus. The selling stockholders may, as an alternative to
their offering pursuant to this prospectus, seek to sell the aggregate of
175,870,488 shares of our common stock, when permissible, pursuant to the
exemption of Rule 144 under the Securities Act of 1933. As the notes to the
table beginning on page 24 of this prospectus indicate, certain of the selling
stockholders beneficially own other shares of our common stock which are not
being offered pursuant to this prospectus.
6. WHAT IS THE OFFERING PRICE PURSUANT TO THIS PROSPECTUS?
The selling stockholders have advised us that they will sell, from time
to time, the shares of our common stock at the prices quoted for our common
stock on the American Stock Exchange, in the third market, in isolated
transactions, or in a combination of such methods of sale. They may sell their
shares at fixed prices that may be changed, at market prices prevailing at the
time of sale, at prices related to prevailing market prices, or at negotiated
prices with institutional or other investors. Our common stock is currently
listed on the American Stock Exchange under the symbol "LFP." On September 30,
2003, the closing sales price as reported by the American Stock Exchange was
$0.42 per share.
7. WILL WE RECEIVE ANY PROCEEDS AS A RESULT OF SALES OF SHARES PURSUANT
TO THIS PROSPECTUS?
We are registering the shares of our common stock offered by this
prospectus for the account of the selling stockholders identified in the section
of this prospectus entitled "Selling Stockholders." All of the net proceeds from
the sale of our common stock by this prospectus will go to the selling
stockholders who offer and sell their shares of our common stock. We will not
receive any part of the proceeds from the sale of these securities.
7
RISK FACTORS
BEFORE YOU INVEST IN OUR COMMON STOCK BY PURCHASING SHARES FROM A
SELLING STOCKHOLDER NAMED IN THIS PROSPECTUS, YOU SHOULD BE AWARE THAT THERE ARE
VARIOUS RISKS. WE HAVE DESCRIBED BELOW ALL OF THE RISKS WHICH WE DEEM MATERIAL
TO YOUR INVESTMENT DECISION. A LIST OF THE NAMED SELLING STOCKHOLDERS MAY BE
FOUND IN THIS PROSPECTUS IN THE TABLE BEGINNING ON PAGE 19. YOU SHOULD CONSIDER
CAREFULLY THESE RISK FACTORS, TOGETHER WITH ALL OF THE OTHER INFORMATION
INCLUDED IN THIS PROSPECTUS AND IN THE PERIODIC REPORTS WE HAVE FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES EXCHANGE ACT OF 1934,
BEFORE YOU DECIDE TO PURCHASE ANY SHARES OF OUR COMMON STOCK. FOR INFORMATION AS
TO HOW YOU MAY RECEIVE COPIES OF OUR PERIODIC REPORTS, WE DIRECT YOUR ATTENTION
TO THE SECTION CAPTIONED "WHERE TO FIND ADDITIONAL INFORMATION" IN THIS
PROSPECTUS.
THE FOLLOWING RISK FACTORS RELATE TO OUR OPERATIONS:
WE MAY HAVE A NEED TO RAISE ADDITIONAL MONEY IN THE FUTURE AND THERE IS
NO GUARANTEE THAT WE WILL BE ABLE TO OBTAIN THE AMOUNTS WE MAY NEED.
Our predecessor independent auditors, in their report on our financial
statements as of and for the year ended March 31, 2003, have included an
explanatory paragraph describing conditions that raise substantial doubt about
our ability to continue as a going concern, unless we were able to raise
additional funds. We just completed an offering of Series D preferred stock,
which may provide us with sufficient funds to meet our needs. However, if we are
not able to meet our business goals, including certain sales revenues, we may
need to raise additional funds in the future.
We have operated at a loss and expect that to continue for some time in
the future. Our plans for continuing product refinement and development, and to
further develop our distribution network and manufacturing capacity will involve
substantial costs. The extent of these costs will depend on many factors,
including some of the following:
o The progress and breadth of product refinement and
manufacturing capacity and the timing of product trial
acceptance by distributors, all of which directly influence
cost and product sales;
o The costs involved in completing the regulatory process to get
our products approved, including the number, size, and timing
of any potential requested additional clinical trials and
costs associated with any potential additional clinical data
review and assembly;
o The costs involved in patenting our technologies and defending
such patents;
o The cost of manufacturing scale-up and distributing the IMPACT
Test System; and
o Competition for our products and our ability, and that of our
distributors, to complete commercialization of our product.
In the past, we have raised funds by public and private sales of our
stock, and we are likely to do this in the future to raise needed funds. Sales
of our stock to new private or public investors will usually result in existing
stockholders becoming "diluted." The greater the number of shares sold, the
greater the dilution. A high degree of dilution can make it difficult for the
price of our stock to rise rapidly, among other things. Dilution also lessens a
stockholder's voting power.
We cannot assure you that we will be able to raise sufficient capital
we may need to fund operations, or that we will be able to raise capital under
terms that are favorable to us.
WE EXPECT OUR OPERATIONAL LOSSES TO CONTINUE FOR PROBABLY AT LEAST
ANOTHER FIVE QUARTERS AFTER JUNE 30, 2003.
From the date we were incorporated on October 8, 1992 through June 30,
2003, we have incurred net losses of $56,450,917. In February 2002, we launched
the marketing of the IMPACT TEST SYSTEM, our first product, to the international
law enforcement market, one of our three initial worldwide target markets. There
was no governmental approval required as a prerequisite to market to these
potential users of our product. However, as indicated elsewhere in this section
"Risk Factors," there are certain legal challenges that we must overcome to make
our product fully acceptable in this market.
8
For us to market our product in the United States to hospitals and
other medical facilities (including medical emergency rooms), which is another
one of our target markets, we must first obtain clearance from the FDA for our
product. We have initiated six, and expect to complete all nine, filings of
510(k) applications, including the latest drugs developed, for clearance with
the FDA no sooner than the quarter ending December 31, 2003.
Our other initial target market is industrial companies that currently
test employees for drugs and alcohol. In November 2000, the FDA announced its
intention to be consistent in its regulation of drugs of abuse screening tests
used in the home, work place, insurance and sports settings. Should the FDA
enforce such regulations, despite our efforts and those of others to dissuade
the FDA from doing so, such regulations would delay the start of marketing to
the industrial market in the United States until we comply with such
regulations. However, in anticipation of such adoption, we have been collecting
the additional field data which management believes, based on discussions with
the FDA, the FDA would require to approve our entry into the industrial market
in the United States. We will seek this clearance from the FDA simultaneously
with seeking approval of use of our product for medical purposes. In addition,
we have commenced efforts to market our product to law enforcement agencies and
medical users in Europe and Australia prior to obtaining FDA approval for use in
the United States. This program could offset any loss in early revenues due to
the delay, if it occurs, in our marketing to the industrial market in the United
States.
We may not meet the schedule described in the preceding two paragraphs,
both as to our additional market launches and making our submissions to the FDA.
In addition, the FDA or a foreign government may not grant clearance for the
sale of our product for routine screening and/or diagnostic operations.
Furthermore, the clearance process may take longer than projected. Even if we
meet our schedule and although we have begun to generate revenues, it is
anticipated that we will not attain profitability sooner than five quarters from
September 30, 2003.
WE MAY HAVE A NEED FOR ADDITIONAL FINANCING TO CONTINUE OR EXPAND OUR
BUSINESS.
Our ability to continue as a going concern will be dependent upon our
ability to achieve profitable operations. We will need to rely on the proceeds
from our private placement of Series D Convertible Preferred Stock to meet our
capital needs until we achieve a positive cash flow from operations. Our ability
to raise additional capital cannot be predicted at this time. Further, there can
be no assurance that we will achieve positive cash flow in the next fiscal year
or ever. If there is a reduced rate of growth in revenues from those currently
anticipated, we may require additional funding. In addition, if we receive
orders for our product faster than currently anticipated, we could require
additional financing to expand our manufacturing, sales and other capabilities.
Our inability to meet any such increased demand could result in the cancellation
of orders and delay our attainment of becoming profitable.
WE WILL BE INCREASING THE DEMANDS ON OUR LIMITED RESOURCES AS WE
TRANSITION OUR EFFORTS FROM RESEARCH AND DEVELOPMENT TO PRODUCTION AND SALES.
We currently have limited financial and personnel resources. We have
only recently begun to transition from a research and development focused
organization to a production and sales organization. To successfully manage this
transition, we will be required to grow the size and scope of our operations,
maintain and enhance our financial and accounting systems and controls, hire and
integrate new personnel and manage expanded operations. There can be no
assurance that we will be able to identify, hire and train qualified individuals
as we transition and expand. Our failure to manage these changes successfully
could have a material adverse effect on the quality of our products and
technology, our ability to retain customers and key personnel and our operating
results and financial condition.
We expect to encounter the risks and difficulties frequently
encountered by companies that have recently made a transition from research and
development activities to commercial production and marketing. We have set forth
below certain of these risks and difficulties in this section "Risk Factors." As
an example, the transition from a development stage company to a commercial
company may strain managerial, operational and financial resources. If our
product achieves market acceptance, then we will need to increase our number of
employees, significantly increase our manufacturing capability and enhance our
operating systems and practices. We can give no assurances that we will be able
to effectively do so or otherwise effectively manage future growth.
9
OUR IMPACT TEST SYSTEM MAY HAVE A LENGTHY SALES CYCLE IN SOME MARKETS
AND OUR CUSTOMERS MAY DECIDE TO CANCEL OR CHANGE THEIR PRODUCT PLANS, WHICH
COULD CAUSE US TO LOSE ANTICIPATED SALES.
Based on our early stages of product sales and the new technology
represented by our product, our customers test and evaluate our product
extensively prior to ordering it. In some markets, our customers may need three
to six months or longer to test and evaluate our product prior to ordering. Due
to this lengthy sales cycle, we have and may continue to experience delays from
the time we increase our operating expenses and our investments in inventory
until the time that we generate revenues from these products. It is possible
that we may never generate any revenues from these products after incurring such
expenditures. The delays inherent in our lengthy sales cycle in some markets may
increase the risk that a customer will decide to cancel or change its product
plans. Such a cancellation or change in plans by a customer could cause us to
lose sales that we had anticipated. In addition, our business, financial
condition and results of operations could be materially and adversely affected
if significant customers curtail, reduce or delay orders.
THROUGH THE EARLY STAGES OF PRODUCT RELEASE, OUR AVERAGE PRODUCT CYCLES
HAVE TENDED TO BE SHORT AND, AS A RESULT, WE MAY HOLD EXCESS OR OBSOLETE
INVENTORY WHICH COULD ADVERSELY AFFECT OUR OPERATING RESULTS.
While our sales cycles in our initial markets have been long, our
current average product life cycles tend to be short as a result of the rapidly
changing product designs we make based on customer feedback. As a result, the
resources we devote to product sales and marketing may not generate material
revenues for us, and from time to time, we may need to write off excess and
obsolete inventory. If we incur significant marketing and inventory expenses in
the future that we are not able to recover, and we are not able to compensate
for those expenses, our operating results could be adversely affected. In
addition, if we sell our products at reduced prices in anticipation of cost
reductions and we still have higher cost products in inventory, our operating
results would be harmed.
UNEXPECTED PROBLEMS AS TO HOW OUR PRODUCT FUNCTIONS CAN DELAY RECEIPT
OF REVENUES AND ULTIMATELY OUR ATTAINING PROFITABILITY AND COULD POTENTIALLY
ADVERSELY IMPACT OUR ABILITY TO CONTINUE AS A GOING CONCERN.
We experienced delays in marketing our product because of unanticipated
performance problems that had arisen first in our own testing in our research
and development facility and later at market trial and customer sites.
Accordingly, when a product performance problem surfaced, we had no choice
except to make product improvements and modifications. We also had to delay
completion of the field-testing necessary to furnish the data for some of our
submissions to the FDA, and with it, to delay completion of such FDA
submissions.
These delays in product production and other product problems delayed
our receipt of revenues, which has increased our need for additional financing.
Attention is also directed to the possible delays at the FDA described in this
section "Risk Factors." Any future delays in obtaining revenues will increase
our need for additional financing and could adversely impact our ability to
continue as a going concern.
WE WILL FACE COMPETITION FROM NEW AND EXISTING DIAGNOSTIC TEST SYSTEMS.
We face competition from many companies of varying size. Substantially
all of our competitors current products either use urine or blood samples as a
specimen to test for drugs of abuse or use breath, saliva, or blood samples to
test for alcohol. Based on our knowledge of the marketplace, we believe that
there are no products currently available that both test simultaneously for
drugs of abuse and alcohol and provide lab-quality, blood-comparable, "under the
influence" information for drugs of abuse on-site. Drug testing is primarily
done on urine, both in a central lab or on-site, with limited testing being done
on blood in a central lab. Recently, saliva-based, lateral-flow membrane,
on-site drug tests have been introduced.
Four companies, Avitar, Inc. ("Avitar"), OraSure Technologies, Inc.
("OraSure"), Varian, Inc. ("Varian"), formerly known as AnSys, Brannan Medical
("Brannan") and Cozart Bioscience Ltd. ("Cozart"), market oral screening drugs
of abuse devices. The type of technology used by these companies is called
lateral flow membrane technology, which is the process by which a specimen flows
across a treated test strip (membrane) and which produces colored test result on
a portion of the test strip. Home pregnancy tests are a good example of lateral
flow membrane technology. This type of test is less sensitive than the flow
immunosensor technology and cannot provide quantifiable results, but only
qualitative, yes/no answers. We believe this type of technology is not sensitive
enough to detect certain drugs at levels that are found in saliva. Additionally,
on-site tests that are not instrument-based and rely on a subjective result
reading are not generally legally admissible or defensible. In addition, we
recognize that other products performing on-site testing for drugs in blood or
saliva may be developed and introduced into the market in the future.
10
We also face as competitors BioSite Diagnostics Inc., Syva Company (a
division of Dade International Inc.), Varian Inc. and at least five other major
diagnostic and/or pharmaceutical companies. All of these competitors currently
use urine as the specimen for on-site drug testing. Almost all of these
prospective competitors have substantially greater financial resources than we
have to develop and market their products.
With respect to breath testing for the presence of alcohol, we will
compete with CMI, Inc., Intoximeters, Inc., Draeger Safety, Inc., and other
small manufacturers.
Furthermore, because of the time frame we have taken to bring our
product to market, our competition may have developed name recognition among
customers that will adversely effect our future marketing efforts.
FAILURE TO COMPLY WITH THE SUBSTANTIAL GOVERNMENTAL REGULATION TO WHICH
WE ARE SUBJECT MAY ADVERSELY AFFECT OUR BUSINESS.
Attention has been drawn to the fact that we cannot market our
saliva-based testing device to hospitals and other medical facilities unless we
have obtained FDA approval. We have also pointed out that the FDA announced its
intention to regulate marketing to the industrial market in the United States.
In addition, if the FDA determines to regulate the industrial market in the
United States, this will further delay the receipt of revenues by us in this
market. Attention has also been drawn to the fact that, if we cannot obtain a
waiver from CLIA regulation, the cost of running the IMPACT TEST SYSTEM could be
higher for potential customers. There can be no assurance that we will obtain a
waiver from CLIA regulation or FDA approval on a timely basis, if at all. If we
do not obtain such waiver and approvals, our business will be adversely
affected.
WE MAY NOT BE ABLE TO EXPAND MANUFACTURING OPERATIONS ADEQUATELY OR AS
QUICKLY AS REQUIRED TO MEET EXPECTED ORDERS.
We first began our manufacturing process in January 2001. However, we
have not as yet made any significant deliveries of our product. Accordingly, we
have not as yet demonstrated the ability to manufacture our product at the
capacity necessary to support expected commercial sales. In addition, we may not
be able to manufacture cost effectively on a large scale.
We expect to conduct all manufacturing of the Saliva Test Module's
(STM) at our own facility. In addition, we intend to continue to assemble the
IMPACT TEST SYSTEM instrument for at least another four to six months or more.
If our facility or the equipment in our facility is significantly damaged or
destroyed, we may not be able to quickly restore manufacturing capacity. We have
engaged an outside manufacturer of instruments to final assemble the current
instrument in conjunction with our own in-house assembly. Our current timetable
for transfer of some of the final assembly of the current instrument is during
the quarter ending March 31, 2004. We could, accordingly, turn over instrument
assembly to a number of qualified outside instrument assembly suppliers in the
event of such problems at our facility. We can use another manufacturer for the
final assembly of our instrument because other suppliers furnish the
subassemblies and other components. Accordingly, any capable electronics
manufacturer would have the capability to produce this type of equipment. We
have identified several potential electronic manufacturers as possible
alternatives to our initial outside supplier should we so require. However, the
STM is a proprietary device developed by us and, accordingly we are not
currently aware of any alternative manufacturer for the STM.
OUR DEPENDENCE ON CMI, OUR STRATEGIC PARTNER, TO MARKET TO THE LAW
ENFORCEMENT MARKET MAY ADVERSELY AFFECT OUR INITIAL MARKETING EFFORTS IF CMI
DOES NOT SELL IN THE QUANTITIES WE ARE ANTICIPATING.
As indicated above, our initial target market in the United States is
the law enforcement market. On June 4, 2001, we entered into an exclusive
three-year, renewable, distributorship agreement with CMI, Inc. ("CMI") to
distribute the IMPACT TEST SYSTEM to the law enforcement markets in the United
States and Canada. We selected CMI because, to our knowledge, it is the
marketing and manufacturing leader for evidentiary breath alcohol testing
instruments in law enforcement in this country. Nevertheless, CMI may not be
able to sell the quantities of IMPACT TEST SYSTEM instruments that we believe
that CMI is capable of selling. In such event, we would be required to seek
another distributor or increase our own internal selling staff. We can give no
assurance as to how quickly or successfully these alternative methods of product
distribution will be implemented. Additionally, if MPD Inc., CMI's parent
corporation, became bankrupt or had similar financial problems, this would
prevent CMI from paying fees or making purchases.
11
Based on CMI's initial forecasts, CMI will pay us approximately
$5,000,000 during the first two and one-half years of the agreement. However,
the agreement has a three-year term that does not begin until general marketing
of the IMPACT TEST SYSTEM begins in the law enforcement market. Due to our lack
of financing, this is not expected to begin prior to the quarter ending March
31, 2004. We note that CMI will benefit from volume discounts and, therefore,
margins on products purchased by CMI may decrease over the term of the contract.
In addition, CMI has guaranteed pricing on the instruments, which may result in
much lower margins once we transfer the instrument production to an outside
vendor. The agreement with CMI is automatically renewable unless CMI or we give
notice to the other 180 days prior to the end of the initial term. Another risk
is that CMI may terminate the distribution agreement.
We can give no assurance, however, that CMI will make sales as we
initially forecasted and, accordingly, make significant payments to us. Even if
CMI were to pay us the contractual minimum amounts to maintain our exclusive
marketing rights, such payments would be materially less than the forecasted
amount of $5,000,000. For us to realize such forecasted amount from CMI, CMI
would have to sell, on the average, at least 15 IMPACT TEST SYSTEM instruments
per month during the two-and-one-half-year period. As of June 30, 2003, we had
received no payments from CMI.
LEGAL PRECEDENT HAS NOT YET BEEN ESTABLISHED FOR UPHOLDING THE RESULTS
OF OUR DIAGNOSTIC TEST SYSTEM.
The legal precedents for performing drug and alcohol testing in both
law enforcement and the industrial workplace are well established. Blood and
urine are the currently accepted standard samples for testing for drugs. Blood,
breath and saliva are the currently accepted standard samples for testing for
alcohol. However, several saliva-based drug tests are beginning to be used. We
believe that our product meets the legal standards for admission as scientific
evidence in court. However, until our product is challenged in court and a legal
precedence is established, we cannot give assurance that our technology will be
admissible in court and accepted by the market.
We believe the desire to use saliva for drug testing in the workplace
market is very strong. For example, SAMHSA, the federal agency that regulates
drug testing on federal safety-sensitive workers, has indicated that it is in
the process of adding saliva to the menu of applicable technologies for drug
testing of federal safety sensitive personnel. Additionally, the use of saliva
or other bodily substances to test employees on-site in the workplace for drugs
is permitted in all states but four states
State laws are being revised on an ongoing basis to allow law
enforcement officers to use saliva as a specimen for testing for drivers under
the influence of drugs or alcohol. Currently, saliva or other bodily substances
for DUI testing for drugs or alcohol is specifically permitted in 24 states, but
specifically excluded in six. Additional efforts will be needed to change the
laws in these states which have not adopted saliva as an acceptable test
specimen for DUI testing. We believe this change will occur because law
enforcement officials are anxious to have a non-invasive test method for drug
testing and are willing to support legislation. We are currently working on
draft legislation for this joint effort. Nevertheless, we cannot give assurance
as to when and if this legislation will be adopted in the other states.
Lastly, the National Highway and Traffic Safety Administration must
approve alcohol test products for Department of Transportation use, either as a
screening method or an evidentiary method. We believe that our product meets the
requirements of an evidentiary product. Nevertheless, because we have not yet
submitted our product for approval, we cannot guarantee acceptance by this
governmental agency.
OUR EFFORTS TO LEGALLY PROTECT OUR PRODUCT MAY NOT BE SUCCESSFUL.
We will be dependent on our patents and trade secret law to legally
protect the uniqueness of our testing product. However, if we institute legal
action against those companies that we believe may have improperly used our
technology, we may find ourselves in long and costly litigation. This result
could increase costs of operations and adversely affect our results of
operations.
In addition, should it be successfully claimed that we have infringed
on the technology of another company, we may not be able to obtain permission to
use those rights on commercially reasonable terms, if at all. Moreover, in such
event a company could bring legal action against us and we may find ourselves in
long and costly litigation.
12
WE MAY BE SUED FOR PRODUCT LIABILITY RESULTING FROM THE USE OF OUR
DIAGNOSTIC PRODUCT.
We may be held liable if the IMPACT TEST SYSTEM causes injury of any
type. We have obtained product liability insurance to cover us against this
potential liability. We believe that the amount of our current coverage is
adequate for the potential risks in these areas. However, assuming a judgment is
obtained against us, our insurance policy limits may not cover all of the
potential liabilities. If we are required at a later date to increase the
coverage, we may obtain the desired coverage, but only at a higher cost.
OUR INCREASING EFFORTS TO MARKET PRODUCTS OUTSIDE THE UNITED STATES MAY
BE AFFECTED BY REGULATORY, CULTURAL OR OTHER RESTRAINTS.
We have commenced efforts to market our product through distributors in
countries outside the United States, starting with certain of the Western
European and Asian countries. In addition to economic and political issues, we
may encounter a number of factors that can slow or impede our international
sales, or substantially increase the costs of international sales, including the
following:
o We do not believe that our compliance with the current
regulations for marketing our product in European countries
will be a problem. However, new regulations (including customs
regulations) can be adopted by these countries which may slow,
limit or prevent our marketing our product. In addition, other
countries in which we attempt, through distributors, to market
our product may require compliance with regulations different
from those of the Western European market.
o Cultural and political differences may make it difficult to
effectively obtain market acceptances in particular countries.
o Although our distribution agreements provide for payment in
U.S. dollars, exchange rates, currency fluctuations, tariffs
and other barriers and extended payment terms could effect our
distributors' ability to perform and, accordingly, impact our
revenues.
o Although we made an effort to satisfy ourselves as to the
credit-worthiness of our distributors, the credit-worthiness
of the foreign entities to which they sell may be less certain
and their accounts receivable collections may be more
difficult.
THE FOLLOWING RISK FACTORS RELATE TO OUR COMMON STOCK:
FUTURE SALES OF OUTSTANDING DERIVATIVE SECURITIES MAY ADVERSELY AFFECT
THE MARKET PRICE OF OUR COMMON STOCK.
All of the 38,027,320 shares of our common stock outstanding on
September 30, 2003, were eligible for sale, as of September 30, 2003.
As of September 30, 2003, there were 3,148,259 shares reserved for
issuance upon the exercises of stock options granted or to be granted pursuant
to either our 1997 stock option plan or our 2000 stock option plan. Stock
options were exercisable on such date, or will become exercisable within 60 days
after that date, to purchase an aggregate of 1,123,495 shares. All of the shares
issuable upon the exercises of stock options pursuant to these two plans have
been registered under the Securities Act of 1933 for issuance by us to the
respective optionees. Accordingly, unless the optionee is an "affiliate" of our
company as such term is defined in Rule 405 under the Securities Act of 1933, he
or she may, after exercise of a stock option, resell the shares received upon
exercise without delivering a "reoffer" prospectus. Consistent with the practice
of other public companies, we filed on August 9, 2001 a reoffer prospectus so
that directors, executive officers and significant employees of our company
holding stock options, or who exercised stock options, may resell their shares
of our common stock immediately as other employees may do.
In addition, as of September 30, 2003, we had reserved an aggregate of
12,040,559 shares for the exercises of certain outstanding common stock purchase
warrants. The subject warrants do not include the common stock purchase warrants
held by the selling stockholders or those held by three of our principal
operating officers. The subject warrants expire on various dates ranging from
November 30, 2003 to December 12, 2007. They have exercise prices ranging from
$0.50 to $4.77 per share. They were all exercisable as of September 30, 2003.
13
The shares of our common stock issuable upon exercises of these warrants to
purchase an aggregate of 60,000 shares have not been registered under the
Securities Act of 1933. Accordingly, these shares will be "restricted
securities" as such term is defined in Rule 144 (a)(3) under the Securities Act
of 1933 after issuance. Each holder may, one year after the exercise of any such
warrant, resell his, her or its shares received upon any such exercise pursuant
to the exemption from registration of Rule 144 under the Securities Act of 1933.
We are unable to predict the effect that sales into the market of
shares of our common stock made under Rule 144 or otherwise and the delayed
sales into the market of shares subject to the outstanding stock options and the
warrants may have on the then prevailing market price of our common stock. It is
likely that market sales of large amounts of these shares of our common stock or
of the 175,870,488 shares offered for resale pursuant to this prospectus (or the
potential for those sales even if they do not actually occur) may have the
effect of depressing the market price of our common stock.
WE DO NOT ANTICIPATE PAYING DIVIDENDS ON COMMON STOCK IN THE
FORESEEABLE FUTURE.
We intend to retain future earnings, if any, to fund our operations and
expand our business. In addition, our expected continuing operational losses and
our Series C and Series D preferred stock will limit legally our ability to pay
dividends on our common stock. Accordingly, we do not anticipate paying cash
dividends on shares of our common stock in the foreseeable future.
OUR BOARD'S RIGHT TO AUTHORIZE ADDITIONAL SHARES OF PREFERRED STOCK
COULD ADVERSELY IMPACT THE RIGHTS OF HOLDERS OF OUR COMMON STOCK.
Our board of directors currently has the right, with respect to the
2,385,000 shares of our preferred stock not designated as our Series C or Series
D preferred stock, to authorize the issuance of one or more additional series of
our preferred stock with such voting, dividend and other rights as our directors
determine. Such action can be taken by our board without the approval of the
holders of our common stock. The sole limitation is that the rights of the
holders of any new series of preferred stock must be junior to those of the
holders of the Series D, followed by the Series C preferred stock with respect
to dividends, upon redemption and upon liquidation. Accordingly, the holders of
any new series of preferred stock could be granted voting rights that reduce the
voting power of the holders of our common stock. For example, the preferred
holders could be granted the right to vote on a merger as a separate class even
if the merger would not have an adverse effect on their rights. This right, if
granted, would give them a veto with respect to any merger proposal. Or they
could be granted 20 votes per share while voting as a single class with the
holders of the common stock, thereby diluting the voting power of the holders of
our common stock. In addition, the holders of any new series of preferred stock
could be given the option to be redeemed in cash in the event of a merger. This
would make an acquisition of us less attractive to a potential acquirer. Thus,
our board could authorize the issuance of shares of the new series of preferred
stock in order to defeat a proposal for the acquisition of us which a majority
of our then holders of our common stock otherwise favor.
OUR CERTIFICATE OF INCORPORATION CONTAINS CERTAIN ANTI-TAKEOVER
PROVISIONS, WHICH COULD FRUSTRATE A TAKEOVER ATTEMPT AND LIMIT YOUR ABILITY TO
REALIZE ANY CHANGE OF CONTROL PREMIUM ON SHARES OF OUR COMMON STOCK .
There are two provisions in our certificate of incorporation or bylaws
which could be used by us as an anti-takeover device. Our certificate of
incorporation provides for a classified board -- one third of our directors to
be elected each year. Accordingly, at least two successive annual elections will
ordinarily be required to replace a majority of the directors in order to effect
a change in management. Thus, the classification of the directors may frustrate
a takeover attempt which a majority of our then holders of our common stock
otherwise favor.
In addition, we are obligated to comply with the procedures of Section
203 of the Delaware corporate statute, which may discourage certain potential
acquirors which are unwilling to comply with its provisions. Section 203
prohibits us from entering into a business combination (for example, a merger or
consolidation or sale of assets of the corporation having an aggregate market
value equal to 10% or more of all of our assets) for a period of three years
after a stockholder becomes an "interested stockholder." An interested
stockholder is defined as being the owner of 15% or more of the outstanding
voting shares of the corporation. There are exceptions to its applicability
including our board of directors approving either the business combination or
the transaction which resulted in the stockholder becoming an interested
stockholder. At a minimum we believe such statutory requirements may require the
potential acquirer to negotiate the terms with our directors.
14
================================================================================
WE HAVE NOT AUTHORIZED ANY PERSON TO MAKE A STATEMENT THAT DIFFERS FROM WHAT IS
IN THIS PROSPECTUS. IF ANY PERSON DOES MAKE A STATEMENT THAT DIFFERS FROM WHAT
IS IN THIS PROSPECTUS, YOU SHOULD NOT RELY ON IT. THIS PROSPECTUS IS NOT AN
OFFER TO SELL, NOR IS IT SEEKING AN OFFER TO BUY, THESE SECURITIES IN ANY STATE
WHERE THE OFFER OR SALE IS NOT PERMITTED. THE INFORMATION IN THIS PROSPECTUS IS
COMPLETE AND ACCURATE AS OF ITS DATE, BUT THE INFORMATION MAY CHANGE AFTER THAT
DATE.
================================================================================
FORWARD-LOOKING STATEMENTS
This prospectus contains and incorporates by reference forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. These forward-looking
statements are subject to a number of risks, uncertainties and assumptions about
us, including, among other things, those set forth elsewhere in this prospectus
under the heading "Risk Factors." You can identify these forward-looking
statements by forward-looking words such as "believe," "may," "could," "will,"
"estimate," "continue," "anticipate," "intend," "seek," "plan," "expect,"
"should," "would" and similar expressions used in this prospectus.
We undertake no obligation to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks and uncertainties, the forward-looking events and
circumstances discussed in this prospectus may not occur and actual results
could differ materially from those anticipated or implied in the forward-looking
statements.
15
USE OF PROCEEDS
We are registering the shares of our common stock offered by this
prospectus for the account of the selling stockholders identified in the section
of this prospectus entitled "Selling Stockholders." All of the net proceeds from
the sale of our common stock by this prospectus will go to the selling
stockholders who offer and sell their shares of our common stock. We will not
receive any part of the proceeds from the sale of these securities.
SELLING STOCKHOLDERS
The following table sets forth for each selling stockholder, as of the
date of this prospectus:
o the name of the selling stockholder,
o the number and percentage of shares of our common stock
beneficially owned as of September 2, 2003,
o the number of shares of our common stock to be offered
pursuant to this prospectus, and
o the number and percentage of shares of our common stock to be
beneficially owned following the offering pursuant to this
prospectus, assuming all of the shares to be offered pursuant
to this prospectus are sold.
During the past three years, none of the selling stockholders had any
position, office or other material relationship with us, except as a stockholder
and except that Paul Sandler, one of our directors, is affiliated with a family
partnership, PMLDSS, Ltd., which is a selling stockholder.
The selling stockholders are offering pursuant to this prospectus, as
indicated in the following table, an aggregate of 175,870,488 shares of our
common stock, broken down as follows:
o an aggregate of 142,699,621 shares of our common stock
issuable upon the conversion of and payment of dividends on
our Series D preferred stock and the exercise of warrants
issued in connection with our Series D preferred stock,
o an aggregate of 25,177,363 additional shares of common stock
issuable upon the conversion of 239,792 shares of our Series C
preferred stock ($35 stated value), resulting from a one time
change in the conversion price of our Series C preferred
stock, from $3.00 per share to $0.30 per share, granted to the
holders of Series C preferred stock who participated in the
private placement of our Series D preferred stock,
o an aggregate of 5,348,504 shares issued or which we estimate
to be issuable upon the redemption of premium with respect to
the 389,791 outstanding shares of our Series C preferred
stock, and
o an aggregate of 2,645,000 shares of our common stock issuable
upon the exercise of warrants originally issued to two of our
creditors on November 12, 2002 and February 19, 2003.
The following table assumes that the selling stockholders will sell all
of the shares offered under this prospectus. However, because the selling
stockholders may offer from time to time all or some of their shares under this
prospectus, or in another permitted manner, no assurances can be given as to the
actual number of shares that will be sold by the selling stockholders or that
will be held by the selling stockholders after completion of such sales.
Information concerning the selling stockholders may change from time to time and
changed information will be presented in a supplement to this prospectus if and
when necessary and required.
The percentages of beneficial ownership reported in the following table
are based upon 38,027,320 shares of our common stock which were outstanding on
September 30, 2003. The number of shares shown in the column entitled "Shares
Beneficially Owned Before Offering" is determined under rules promulgated by the
SEC. No holder of preferred stock or warrants issued in connection with the
Series D preferred stock financing is entitled to convert any shares of such
preferred stock into, or exercise any such warrants for, common stock, or
dispose of any shares of such preferred stock or any portion of any such
warrants if it would result in the holder or any of its affiliates together
beneficially owning more than 4.99% of the outstanding shares of our common
stock, except with respect to stockholders who previously waived this provision
prior to it becoming binding upon them. Therefore, while included in the number
of shares offered in the table below, shares which the selling stockholder is
prevented from acquiring as a result of these provisions are not shown as
beneficially owned by virtue of such limitation. As a result, the number of
shares that each selling stockholder may sell pursuant to this prospectus may
exceed the number of shares such holder beneficially owned prior to the
offering, as determined pursuant to the rules promulgated by the SEC.
16
Each of the following symbols as used in the selling stockholder table
shall have the meaning assigned to it as indicated below:
Symbol Meaning
- --------------------------------------------------------------------------------
OS Shares of our common stock beneficially owned by the stockholders
acquired other than in connection with the Series C or Series D
Preferred stock transactions.
- --------------------------------------------------------------------------------
OW Shares of our common stock issuable upon exercise of our investor
warrants acquired other than in connection with the Series C or Series
D Preferred stock transactions.
- --------------------------------------------------------------------------------
CS Shares of common stock issuable upon the conversion of our Series C
preferred stock at the original conversion price of $3.00 per share.
- --------------------------------------------------------------------------------
CW Shares of common stock issuable upon exercise of our investor warrants
issued in connection with the Series C private placement.
- --------------------------------------------------------------------------------
CP Shares of common stock estimated to be issuable upon redemption of
premium on our Series C preferred stock.
- --------------------------------------------------------------------------------
CA Shares of common stock issuable to the Series C preferred stock holders
who, by virtue of their participation in the Series D preferred stock
placement, had their conversion price reset to $0.30 per share.
- --------------------------------------------------------------------------------
DS Shares of common stock issuable upon the conversion of our Series D
preferred stock at the original conversion price of $0.30 per share.
- --------------------------------------------------------------------------------
DW Shares of common stock issuable upon exercise of our investor warrants
issued in connection with the Series D private placement.
- --------------------------------------------------------------------------------
DP Shares of common stock estimated to be issuable upon redemption of
premium on our Series D preferred stock.
- --------------------------------------------------------------------------------
NO Shares of our common stock issuable upon exercise of our investor
warrants originally acquired in connection with our two debt
transactions.
- --------------------------------------------------------------------------------
ND Shares of common stock issuable to the debt holders who, by agreement
with the Series D preferred investors, have agreed to convert their
debt into shares of the Series D preferred stock.
- --------------------------------------------------------------------------------
NW Shares of common stock issuable upon exercise of our investor warrants
issued to the debt holders who, by agreement with the Series D
preferred investors, have agreed to convert their debt into shares of
the Series D preferred stock.
- --------------------------------------------------------------------------------
NP Shares of common stock estimated to be issuable upon redemption of
premium on our Series D preferred stock.
- --------------------------------------------------------------------------------
PW Shares of common stock issuable upon exercise of placement agent
warrants.
- --------------------------------------------------------------------------------
TS The total of all of the foregoing shares of our common stock
- --------------------------------------------------------------------------------
17
Where a particular symbol is not shown, then the stockholder does not own shares
falling into that category. In addition, because a stockholder may convert his,
her or its shares of our Series C and Series D preferred stock prior to the
respective maturity date, the stockholder may not receive all of the shares
shown in the table for the symbols CP and DP. If this occurs, the stockholder's
total shown in the table for the symbol TS would also be reduced.
18
TABLE OF SELLING STOCKHOLDERS
Beneficial ownership
before offering Beneficial ownership
(with limitations) Shares after offering
Name of selling stockholder number % Offered number %
- ----------------------------------------------- ------------------------------------------------- --------------------------
St. Cloud Investments Ltd. (1) OS 956,511 220,449 736,062
2525 Michigan Ave., #A5 OW 87,500 - 87,500
Santa Monica, CA 90404 CS 1,452,064 - 1,452,064
CW 1,252,017 - 1,252,017
CP 1,451,648 1,451,648 -
CA 13,064,421 13,064,421 -
DS 9,595,707 9,595,707 -
DW 19,191,414 19,191,414 -
DP 1,727,400 1,727,400 -
------------------ ------------------- -----------------
TS 48,778,682 56.88% 45,251,039 3,527,643 8.64%
General Conference Corporation of SDA (2) OS 6,211,137 58,708 6,152,429
12501 Old Columbia Pike OW 740,000 - 740,000
Silver Spring, MD. 20904 CS 333,424 - 333,424
CW 333,424 - 333,424
CP 333,328 333,328 -
NO 1,525,000 1,525,000 -
ND 9,039,096 9,039,096 -
NW 18,078,192 18,078,192 -
NP 1,627,037 1,627,037 -
------------------ ------------------- -----------------
TS 38,220,638 54.57% 30,661,361 7,559,277 19.17%
Jonathan J. Pallin Revocable Trust (3) OS 662,000 - 662,000
4132 Chevy Chase Dr. NO 1,120,000 1,120,000 -
La Canada, CA 91011 ND 5,146,152 5,146,152 -
NW 10,292,304 10,292,304 -
NP 926,307 926,307 -
------------------- -----------------
TS 18,146,763 32.69% 17,484,763 662,000 1.74%
BayStar Capital II, L.P. (4) DS 628,271 3,333,000 -
80 E. Sir Frances Drake, #2B DW 1,256,541 6,666,000 -
Larkspur, CA 94939 DP 113,100 600,000 -
------------------ -------------------
TS 1,997,912 4.99% 10,599,000 - nil
Lagunitas Partners L.P (5) DS 628,437 2,999,700 -
50 Osgood Place - PH DW 1,256,874 5,999,400 -
San Francisco, CA 94133 DP 113,130 540,000 -
------------------ ------------------- -----------------
TS 1,998,441 4.99% 9,539,100 - nil
New England Partners Capital, L.P. (6) OS 187,117 58,708 128,409
One Boston Place, Ste. 3630 CS 333,424 - 333,424
Boston, MA. 02108 CW 333,424 - 333,424
CP 64,499 333,328 -
CA 580,473 2,999,860 -
DS 322,468 1,666,500 -
DW 644,936 3,333,000 -
DP 58,050 300,000 -
------------------ ------------------- -----------------
TS 1,986,577 4.99% 8,691,396 795,257 2.06%
19
TABLE OF SELLING STOCKHOLDERS
Beneficial ownership
before offering Beneficial ownership
(with limitations) Shares after offering
Name of selling stockholder number % Offered number %
- ----------------------------------------------- ------------------------------------------------- --------------------------
Omicron Master Trust (7) OS 189,378 145,890 43,488
810 Seventh Avenue, 39th Fl CS 828,570 - -
New York, NY 10019 CW 828,570 - 828,570
CP 199,628 828,334 828,570
CA 433,790 1,799,958 -
DS 240,976 999,900 -
DW 481,952 1,999,800 -
DP 43,380 180,000 -
------------------ ------------------- -----------------
TS 1,988,475 4.99% 5,953,882 1,700,628 4.29%
Zannett Lombardier Master Fund II (8) OS 127,417 117,417 10,000
135 East 57th Street CS 466,812 - 466,812
New York, NY 10022 CW 646,852 - 646,852
CP 150,504 466,678 -
CA 1,354,491 4,199,972 -
------------------ ------------------- -----------------
TS 1,991,568 4.99% 4,784,067 1,123,664 2.87%
SF Capital Partners Ltd. (9) DS 628,437 1,666,500 -
505 Montgomery St, 10th Fl DW 1,256,874 3,333,000 -
San Francisco,CA 94111 DP 113,130 300,000 -
------------------ ------------------- -----------------
TS 1,998,441 4.99% 5,299,500 - nil
Roth Capital Partners (10) PW 2,138,698 4,838,683 -
------------------ ------------------- -----------------
24 Corporate Plaza TS 2,138,698 4.99% 4,838,683 - nil
Newport Beach, CA 92660
Alpha Capital Aktiengesellschaft (11) DS 627,937 1,333,200 -
One Bay St., Ste 401 DW 1,255,874 2,666,400 -
Nassau (NP), The Bahamas DP 113,040 240,000 -
------------------ ------------------- -----------------
TS 1,996,852 4.99% 4,239,600 - nil
Gamma Opportunity Capital Partners, L.P. (12) DS 627,937 1,333,200 -
One Bay St., Ste 401 DW 1,255,874 2,666,400 -
Nassau (NP), The Bahamas DP 113,040 240,000 -
------------------ ------------------- -----------------
TS 1,996,852 4.99% 4,239,600 - nil
OTATO Limited Partnership (13) OS 30,408 23,425 6,983
One Manhattanville Rd. CS 133,038 - 133,038
Purchase, NY 10577 CW 133,038 - 133,038
CP 70,357 133,000 -
CA 633,193 1,196,962 -
DS 352,631 666,600 -
DW 705,263 1,333,200 -
DP 63,480 120,000 -
------------------ ------------------- -----------------
TS 1,996,086 4.99% 3,473,187 273,059 nil
Bristol Investment Fund, Ltd. (14) DS 627,604 1,166,550 -
6363 Sunset Boulevard, 5th Fl DW 1,255,208 2,333,100 -
Hollywood, CA 90028 DP 112,980 210,000 -
------------------ -----------------
TS 1,995,792 4.99% 3,709,650 - nil
20
TABLE OF SELLING STOCKHOLDERS
Beneficial ownership
before offering Beneficial ownership
(with limitations) Shares after offering
Name of selling stockholder number % Offered number %
- ----------------------------------------------- ------------------------------------------------- --------------------------
Crestview Capital Fund II, L.P. (15) DS 627,437 999,900 -
95 Revere Drive, Ste F DW 1,254,875 1,999,800 -
Northbrook, IL 60062 DP 112,950 180,000 -
------------------ ------------------- -----------------
TS 1,995,262 4.99% 3,179,700 - nil
Gruber & McBaine International (16) DS 627,937 999,900 -
50 Osgood Place - PH DW 1,255,874 1,999,800 -
San Francisco, CA 94133 DP 113,040 180,000 -
------------------ ------------------- -----------------
TS 1,996,852 4.99% 3,179,700 - nil
McCarthy Family Partner (17) OS 41,556 14,384 27,172
1107 Broadway, Ste. 1300 CS 81,690 - 81,690
New York, NY 10010 CW 81,690 - 81,690
CP 69,825 81,667 -
CA 628,405 734,977 -
DS 350,515 409,959 -
DW 701,030 819,918 -
DP 63,099 73,800 -
------------------ ------------------- -----------------
TS 1,994,120 4.99% 2,134,705 190,552 nil
J. Patterson McBaine (18) DS 499,950 499,950 -
50 Osgood Place - PH DW 999,900 999,900 -
San Francisco, CA 94133 DP 90,000 90,000 -
------------------ ------------------- -----------------
TS 1,589,850 4.01% 1,589,850 - nil
Jon D & Linda W Gruber (19) DS 499,950 499,950 -
50 Osgood Place - PH DW 999,900 999,900 -
San Francisco, CA 94133 DP 90,000 90,000 -
------------------ ------------------- -----------------
TS 1,589,850 4.01% 1,589,850 - nil
RHP Master Fund, Ltd. (20) DS 333,300 333,300 -
Three Bala Plaza - East, Ste 585 DW 666,600 666,600 -
Bala Cynwyd, PA 19004 DP 60,000 60,000 -
------------------ ------------------- -----------------
TS 1,059,900 2.71% 1,059,900 - nil
Carol Sue Sandler (21) OS 508,346 18,493 489,853
435 East 52nd Street, Suite 13A CS 105,030 - 105,030
New York, NY 10022 CW 105,030 - 105,030
CP 105,000 105,000 -
------------------ ------------------- -----------------
TS 823,406 2.15% 123,493 699,913 nil
H&B Wilson Interests, Ltd. (22) OS 117,255 4,110 113,145
2001 Kirby Drive, Ste 712 CS 23,340 - 23,340
Houston, TX. 77019 CW 23,340 - 23,340
CP 23,333 23,333 -
CA 209,993 209,993 -
DS 116,655 116,655 -
DW 233,310 233,310 -
DP 21,000 21,000 -
------------------ ------------------- -----------------
TS 768,226 1.99% 608,401 159,825 nil
21
TABLE OF SELLING STOCKHOLDERS
Beneficial ownership
before offering Beneficial ownership
(with limitations) Shares after offering
Name of selling stockholder number % Offered number %
- ----------------------------------------------- ------------------------------------------------- --------------------------
Gary Blum (23) OS 5,575 5,137 438
3104 Oak Lane CS 29,175 - 29,175
Dallas TX. 75226 CW 29,175 - 29,175
CP 29,167 29,167 -
CA 262,492 262,492 -
DS 146,652 146,652 -
DW 293,304 293,304 -
DP 26,400 26,400 -
------------------ ------------------- -----------------
TS 821,940 2.12% 763,152 58,788 nil
AWINN Ltd (24) OS 49,146 4,110 45,036
5308 Ashbrook CS 23,340 - 23,340
Houston, TX 77081 CW 23,340 - 23,340
CP 23,333 23,333 -
CA 209,993 209,993 -
DS 116,655 116,655 -
DW 233,310 233,310 -
DP 21,000 21,000 -
------------------ ------------------- -----------------
TS 700,117 1.81% 608,401 91,716 nil
Elliott International, L.P. (25) OS 73,134 32,289 40,845
712 5th Avenue CS 183,382 - 183,382
New York, NY 10019 CW 183,382 - 183,382
CP 183,330 183,330 -
------------------ ------------------- -----------------
TS 623,228 1.62% 215,619 407,609 1.06%
Scorpion Acquisition LLC (26) OS 11,501 3,595 7,906
1107 Broadway, Ste. 1300 CS 20,423 - 20,423
New York, NY 10010 CW 20,423 - 20,423
CP 20,417 20,417 -
CA 183,744 183,744 -
DS 103,323 103,323 -
DW 206,646 206,646 -
DP 18,600 18,600 -
------------------ ------------------- -----------------
TS 585,077 1.52% 536,325 48,752 nil
Elliot Associates, L.P. (27) OS 57,054 26,418 30,636
712 5th Avenue CS 150,041 - 150,041
New York, NY 10019 CW 150,041 - 150,041
CP 149,997 149,997 -
------------------ ------------------- -----------------
TS 507,133 1.32% 176,415 330,718 nil
Brendon Devlin (28) OS 81,347 20,548 60,799
85 West Northfield Road CS 116,700 - 116,700
Livingston, NJ 07039 CW 116,700 - 116,700
CP 116,667 116,667 -
------------------ ------------------- -----------------
TS 431,414 1.12% 137,215 294,199 nil
PMLDSS LTD. (29) OS 60,064 18,493 41,571
8050 North Third Avenue CS 105,030 - 105,030
Phoenix, AZ 85021 CW 105,030 - 105,030
CP 105,000 105,000 -
------------------ ------------------- -----------------
TS 375,124 nil 123,493 251,631 nil
22
TABLE OF SELLING STOCKHOLDERS
Beneficial ownership
before offering Beneficial ownership
(with limitations) Shares after offering
Name of selling stockholder number % Offered number %
- ----------------------------------------------- ------------------------------------------------- --------------------------
The Michael S. McCord GST Trust (30) OS 18,606 2,055 16,551
2001 Kirby Dr., #701 OW 12,500 - 12,500
Houston, TX. 77019 CS 11,670 - 11,670
CW 11,670 - 11,670
CP 11,667 11,667 -
CA 104,997 104,997 -
DS 59,994 59,994 -
DW 119,988 119,988 -
DP 10,800 10,800 -
------------------ ------------------- -----------------
TS 361,892 nil 309,501 52,391 nil
Stifel Nicolaus Cust A. Ray Cercle IRA (31) OS 7,810 2,055 5,755
501 N. Broadway CS 11,670 - 11,670
St. Louis, MO 63102 CW 11,670 - 11,670
CP 11,667 11,667 -
CA 104,997 104,997 -
DS 59,994 59,994 -
DW 119,988 119,988 -
DP 10,800 10,800 -
------------------ ------------------- -----------------
TS 338,596 nil 309,501 29,095 nil
Dos Cunados (32) OS 6,349 2,055 4,294
827 Wade Hampton CS 11,670 - 11,670
Houston, TX 77024 CW 11,670 - 11,670
CP 11,667 11,667 -
CA 104,997 104,997 -
DS 59,994 59,994 -
DW 119,988 119,988 -
DP 10,800 10,800 -
------------------ ------------------- -----------------
TS 337,135 nil 309,501 27,634 nil
Michel A. Amsalem (33) OS 34,510 12,329 22,181
285 Riverside Drive, Suite 11A CS 70,020 - 70,020
New York, NY 10025 CW 70,020 - 70,020
CP 70,000 70,000 -
------------------ ------------------- -----------------
TS 244,550 nil 82,329 162,221 nil
Raul M. Rodelas (34) OS 19,476 6,164 13,312
7114 North 23rd Place CS 35,010 - 35,010
Phoenix, AZ 85020 CW 35,010 - 35,010
CP 35,000 35,000 -
------------------ ------------------- -----------------
TS 124,496 nil 41,164 83,332 nil
Timberline Opportunity Partners, LP (35) OS 6,836 2,055 4,781
657 Ravel Ct. CS 11,670 - 11,670
Las Vegas, NV 89145 CW 11,670 - 11,670
CP 11,667 11,667 -
------------------ ------------------- -----------------
TS 41,843 nil 13,722 28,121 nil
Harry S.Y. Nam (36) OS 2,271 2,055 216
PO Box 3113 CS 11,670 - 11,670
Rancho Santa Fe, CA 92067 CW 11,670 - 11,670
CP 11,667 11,667 -
------------------ ------------------- -----------------
TS 37,278 nil 13,722 23,556 nil
23
1.) Each of Robert T. Tucker and Nancy Main is a director of this
stockholder. As such, they have shared voting and investment powers
with respect to the shares of our common stock reported in the table
for this stockholder. Accordingly, they may be deemed the beneficial
owners of these shares as a result of possessing these powers. However,
they disclaim such beneficial ownership of these shares. On July 9,
2003, St. Cloud Investments, Ltd. agreed to lend Zanett Lombardier
Master Fund II ("Zanett") $1,000,000, to be used by Zanett to purchase
1,000 Series D preferred shares and related warrants. Zanett agreed to
repay such loan by transferring to St. Cloud the 1,000 Series D
preferred shares and related warrants to be purchased by Zanett. Zanett
also agreed to transfer to St, Cloud 17,142 Series C preferred shares.
These transactions were effected on September 22, 2003, simultaneously
with the second closing of the Series D financing.
2.) No person or "group" (as that term is used in Section 13(d) of the
Securities Exchange Act of 1934 or Regulation 13D-G) controls this
stockholder. The governing board of this stockholder delegates
investment authority over owned and trustee funds through various
committees to the General Conference Investment Office, which is led by
an Associate Treasurer of this stockholder (currently Roy Ryan is
assigned with respect to us). Day-to-day responsibility with respect to
each issuer in which this stockholder makes an investment (including
us) is delegated to one or more portfolio managers. They may vote our
shares or execute investment decisions with respect to our securities,
but only within the guidelines or policies authorized by the governing
board or one of the governing committees.
3.) Jonathan J. Pallin is the trustee of this stockholder. As such, he has
sole voting and investment powers with respect to the shares of our
common stock reported in the table for this stockholder. Accordingly,
he may be deemed a beneficial owner of these shares as a result of
possessing such powers.
4.) BayStar Capital Management, LLC, a Delaware limited liability company
("BayStar Management"), is the general partner of the stockholder, and
has the sole voting and investment power with respect to the shares of
our common stock reported in the stockholder table. By reason of such
relationship, BayStar Management may be deemed beneficial owner of
these shares. However, BayStar Management disclaims such beneficial
ownership of these shares. There are three independent managing members
of BayStar Management. The three independent managing members of
BayStar Management are: Steven Lamar, Larry Goldfarb and Steven Derby.
Accordingly, no person or "group" (as that term is defined in Section
13(d) of the Securities Exchange Act of 1934 or Regulation 13D-G)
controls BayStar Management.
5.) Gruber & McBaine Cap Mgmt ("GMCM"), as the general partner of this
stockholder, has the sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, GMCM may be deemed the beneficial owner of
these shares as a result of possessing these powers. However, GMCM
disclaims such beneficial ownership of these shares. Jon D Gruber & J
Patterson McBaine as managing members, along with Eric B Swergold of
GMCM have the power to act on its behalf.
6.) NEP Capital LLC ("NEP Capital"), as the general partner of this
stockholder, has the sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, NEP Capital may be deemed the beneficial
owner of these shares as a result of possessing these powers. However,
NEP Capital disclaims such beneficial ownership of these shares. There
are five independent members of NEP Capital. The five independent
members of NEP Capital are: David Dullum, Robert Hanks, John Rousseau,
Edwin Snape and Chris Young. Accordingly, no person or "group" (as that
term is defined in Section 13(d) of the Securities Exchange Act of 1934
or Regulation 13D-G) controls NEP Capital.
7.) Omicron Capital, L.P., a Delaware limited partnership ("Omicron
Capital'), serves as subadvisor to this stockholder, a Bahamas limited
partnership. Omicron Capital, Inc., a Delaware corporation ("OCI"),
serves as general partner of Omicron Capital and Grove Management
Limited ("Grove") is the general partner of this stockholder. By reason
of such relationships, Omicron Capital and OCI may be deemed to share
dispositive power over the shares of our common stock owned by this
stockholder and Grove may be deemed to share voting and dispositive
power over the shares of our common stock owned by this stockholder.
Omicron Capital, OCI and Grove disclaim beneficial ownership of such
shares of our common stock. On the date of this prospectus, Olivier H.
Morali, an officer of OCI, has delegated authority from the board of
24
directors of OCI regarding the portfolio management decisions with
respect to the shares of our common stock owned by this stockholder.
Mr. Morali disclaims beneficial ownership of such shares of our common
stock and he has no legal right to maintain such delegated authority.
No other person beneficially owns the shares of our common stock owned
by this stockholder. This stockholder and Grove are not "affiliates" of
one another, as that term is used for purposes of the Securities
Exchange Act of 1934, or of any other person named in this prospectus
as a stockholder. No person or "group" (as that term is used in Section
13(d) of the Securities Exchange Act of 1934 or Regulation 13D-G)
controls this stockholder and Grove.
8.) Lombardier Management Limited, a Cayman Islands limited liability
company ("Lombardier"), is the general partner and serves as subadvisor
to this stockholder, a Cayman Islands limited partnership. Zanett
Lombardier Limited is the limited partner of this stockholder ("ZL
Limited"). By reason of such relationships, Lombardier may be deemed to
share dispositive power over the shares of our common stock owned by
this stockholder and ZL Limited may be deemed to share voting and
dispositive power over the shares of our common stock owned by this
stockholder. Lombardier and ZL Limited disclaim beneficial ownership of
such shares of common stock. Gianluca Cicogna, a director of
Lombardier, has delegated authority from the Board of Directors of
Lombardier to make portfolio management decisions with respect to the
shares of common stock owned by this stockholder. Mr. Cicogna disclaims
beneficial ownership of such shares of common stock and he has no legal
right to maintain such delegated authority. No other person
beneficially owns the shares of common stock owned by this selling
stockholder. Lombardier and ZL Limited are not "affiliates" of one
another, as that term is used for purposes of the Securities Exchange
Act of 1934, or of any other person named in this prospectus as a
stockholder. No person or "group" (as that term is used in Section
13(d) of the Securities Exchange Act of 1934 or Regulation 13D-G)
controls Lombardier and ZL Limited. On July 9, 2003, St. Cloud
Investments, Ltd. agreed to lend Zanett Lombardier Master Fund II
("Zanett") $1,000,000, to be used by Zanett to purchase 1,000 Series D
preferred shares and related warrants. Zanett agreed to repay such loan
by transferring to St. Cloud the 1,000 Series D preferred shares and
related warrants to be purchased by Zanett. Zanett also agreed to
transfer to St, Cloud 17,142 Series C preferred shares. These
transactions were effected on September 22, 2003, simultaneously with
the second closing of the Series D financing.
9.) The foregoing shares are held directly by SF Capital Partners, Ltd., a
British Virgin Islands company ("SF Capital"). Staro Asset Management,
L.L.C., a Wisconsin limited liability company ("Staro"), acts as
investment manager of SF Capital. As the managing members of Staro,
Michael A. Roth and Brian J. Stark possess sole voting and dispositive
power over all of the foregoing shares. Therefore, Mssrs. Roth and
Stark may be deemed the beneficial owner of the shares of our common
stock reported in the table for this stockholder as a result of
possessing such powers. However, they disclaim beneficial ownership of
these shares.
10.) Roth Capital Partners, LLC is a California limited liability company.
Gordon Roth is the Chief Operating Officer of this selling stockholder.
As such, he has sole voting and investment powers with respect to the
shares of our common stock reported in the table. Accordingly, he may
be deemed the beneficial owner of these shares as a result of
possessing such powers. However, he disclaims sole beneficial ownership
of these shares.
11.) Konrad Ackermann, as Director of Alpha Capital Aktiengesellschaft, a
corporation organized under the laws of the Principality of
Liechtenstein, has the power to act of its behalf, including the sole
voting and investment power with respect to the LifePoint securities
being registered.
12.) Gamma Capital Advisors, Ltd., an Anguilla, British West Indies company,
is the general partner to the stockholder Gamma Opportunity Capital
Partners, LP, a Cayman Islands registered limited partnership, with the
power to vote and dispose of the common shares being registered on
behalf of the stockholder. As such, Gamma Capital Advisors, Ltd. may be
deemed to be the beneficial owner of said shares. Christopher Rossman
and Jonathan P. Knight, PhD. are the Directors of Gamma Capital
Advisors, Ltd., each possessing the power to act on its behalf. Gamma
Capital Advisors, Ltd., Christopher Rossman and Jonathan P. Knight,
PhD. each disclaim beneficial ownership of the shares of common stock
being registered hereto.
13.) OTA Grand Cayman, Inc., a Delaware corporation ("OTAGC"), is the
general partner of this stockholder, a Grand Cayman limited
partnership. By reason of such relationship, OTAGC may be deemed to
share voting and dispositive power over the shares of our common stock
beneficially owned by this stockholder. OTAGC disclaims beneficial
ownership of such shares of common stock. Frederick Berdon and Paul
Masters, registered representatives of a registered broker-dealer at
which this stockholder maintains a brokerage account, have
25
discretionary authority to trade the shares of common stock owned by
this stockholder and sold through such account. Messrs. Berdon and
Masters disclaim beneficial ownership of such shares of common stock
and neither of such persons has any legal right to require this
stockholder to maintain a brokerage account with such registered
broker-dealer or to require this stockholder to continue to provide
such person discretionary trading authority over the shares of such
account. This stockholder and OTAGC are not "affiliates," as that term
is used for purposes of the Securities Exchange Act of 1934, or of any
other person named in this prospectus as a stockholder. No other person
or "group" (as that term is used in Section 13(d) of the Securities
Exchange Act of 1934 or Regulation 13D-G) controls this stockholder or
OTAGC.
14.) Bristol Investment Fund, Ltd. is a private investment fund organized in
the Cayman Islands and managed by Bristol Capital Advisors, LLC. The
managing members of Bristol Capital Advisors, LLC are Mr. Paul Kessler
and Ms. Diana Derycz Kessler, who have voting and investment control
over the shares owned by Bristol Investment Fund, Ltd.
15.) Crestview Capital Fund II, LP has the sole voting and investment powers
with respect to securities owned by this stockholder. Richard Levy and
Stewart Flink, as Managing partners of the entity, with the power to
act on its behalf, may be deemed the beneficial owner of the shares of
our common stock reported in the table for this stockholder as a result
of possessing such powers. However, they disclaim sole beneficial
ownership of these shares.
16.) Gruber & McBaine Cap Mgmt ("GMCM"), as attorney in fact of this
stockholder, has the sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, GMCM may be deemed the beneficial owner of
these shares as a result of possessing these powers. However, GMCM
disclaims such beneficial ownership of these shares. Jon D Gruber & J
Patterson McBaine as managing members, along with Eric B Swergold of
GMCM have the power to act on its behalf.
17.) Kevin McCarthy, as the general partner of this stockholder, has sole
voting and investment powers with respect to the shares of our common
stock reported in the table for this stockholder. Accordingly, he may
be deemed a beneficial owner of these shares.
18.) J. Patterson McBaine has sole voting and investment powers with respect
to the shares of our common stock reported in the table for this
stockholder. Accordingly, he may be deemed the beneficial owner of
these shares.
19.) Jon D. and Linda W. Gruber have sole voting and investment powers with
respect to the shares of our common stock reported in the table for
this stockholder. Accordingly, he may be deemed the beneficial owner of
these shares.
20.) RHP Master Fund, Ltd. is a party to an investment management agreement
with Rock Hill Investment Management, L.P., a limited partnership of
which the general partner is RHP General Partner, LLC. Pursuant to such
agreement, Rock Hill Investment Management directs the voting and
disposition of shares owed by RHP Master Fund. Wayne Bloch, Gary
Kaminsky and Peter Lockhart own all of the interests in RHP General
Partner. Rock Hill Investment Management, RHP General Partner, and the
individual owners of interests in RHP General Partner disclaim
beneficial ownership of the shares owned by RHP Master Fund.
21.) Carol Sue Sandler has sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, he may be deemed the beneficial owner of
these shares.
22.) Herman T. Wilson, Jr. is the general partner of this stockholder. As
such, he has sole voting and investment powers with respect to the
shares of our common stock reported in the table for this stockholder.
Accordingly, he may be deemed a beneficial owner of these shares as a
result of possessing these powers.
23.) Gary Blum has sole voting and investment powers with respect to the
shares of our common stock reported in the table for this stockholder.
Accordingly, he may be deemed the beneficial owner of these shares.
24.) Peter M. Way is the principal limited partner and a 50% owner with his
wife of the corporate general partner of this stockholder. As such, he
has shared voting and investment powers with respect to the shares of
our common stock reported in the table for this stockholder.
Accordingly, he may be deemed a beneficial owner of these shares as a
result of possessing such powers.
26
25.) Elliott International Capital Associates Inc. has the sole voting and
investment powers with respect to securities (including ours) owned by
this selling stock- holder. Paul E. Singer, as President of such
entity, with the power to act on its behalf, may be deemed the
beneficial owner of the shares of our common stock reported in the
table for this selling stockholder as a result of possessing such
powers. However, he disclaims sole beneficial ownership of these
shares.
26.) Each of Nuno Brandolini and Kevin McCarthy are directors of this
stockholder. As such, they have shared voting and investment powers
with respect to the shares of our common stock reported in the table
for this stockholder. Accordingly, they may be deemed the beneficial
owners of these shares as a result of possessing these powers. However,
each disclaims being the sole beneficial owner of these shares.
27.) Paul E. Singer is the general partner of this selling stockholder. As
such, he has sole voting and investment powers with respect to the
shares of our common stock reported in the table. Accordingly, he may
be deemed the beneficial owner of these shares as a result of
possessing such powers. However, he disclaims sole beneficial ownership
of these shares.
28.) Brendan Devlin has sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, he may be deemed the beneficial owner of
these shares.
29.) Paul Sandler, a director of our company, is the President of the
corporate general partner of this selling stockholder (which is a
"family partnership"). As such, he has voting and investment powers
with respect to the shares of our common stock reported in the table
for this selling stockholder. Accordingly, he may be deemed a
beneficial owner of the shares reported in the table.
30.) Michael S. McCord is the trustee of this stockholder. As such, he has
sole voting and investment powers with respect to the shares of our
common stock reported in the table for this stockholder. Accordingly,
he may be deemed a beneficial owner of these shares as a result of
possessing such powers.
31.) A. Ray Cercle has sole voting and investment powers with respect to the
shares of our common stock reported in the table for this stockholder.
Accordingly, he may be deemed the beneficial owner of these shares.
32.) Ben B. McAndrew, III, as the managing partner of this stockholder, has
sole voting and investment powers with respect to the shares of our
common stock reported in the table for this stockholder. Accordingly,
he may be deemed the beneficial owner of these shares as a result of
possessing these powers.
33.) Michel Amsalem has sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, he may be deemed the beneficial owner of
these shares.
34.) Raul Rodelas has sole voting and investment powers with respect to the
shares of our common stock reported in the table for this stockholder.
Accordingly, he may be deemed the beneficial owner of these shares.
35.) Timberline Asset Management LLC, as the general partner of this selling
stockholder, has sole voting and investment powers with respect to the
shares of our common stock reported in the table for this selling
stockholder. Adam Haron is the sole member of the limited liability
company which is the general partner. Accordingly, he may be deemed the
beneficial owner of these shares as a result of possessing such powers.
36.) Harry S. Y. Nam has sole voting and investment powers with respect to
the shares of our common stock reported in the table for this
stockholder. Accordingly, he may be deemed the beneficial owner of
these shares. Mr. Nam is affiliated with Hyosung Corporation which
acquired in our fourth private placement in February 2000 (a) 500,000
shares of our common stock and (b) a common stock purchase warrant
expiring February 28, 2005 to purchase 500,000 shares of our common
stock.
27
PLAN OF DISTRIBUTION
The selling stockholders and any of their pledgees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares
of common stock pursuant to this prospectus on any stock exchange, market or
trading facility on which the shares are traded or in private transactions.
These sales may be at fixed or negotiated prices. The selling stockholders may
use any one or more of the following methods when selling shares:
o ordinary brokerage transactions and transactions in which the
broker-dealer solicits purchasers;
o block trades in which the broker-dealer will attempt to sell
the shares as an agent but may position and resell a portion
of the block as principal to facilitate the transaction;
o purchases by a broker-dealer as principal and resale by the
broker-dealer for its account;
o an exchange distribution in accordance with the rules of the
applicable exchange;
o privately negotiated transactions;
o short sales;
o broker-dealers may agree with the selling stockholders to sell
a specified number of such shares at a stipulated price per
share;
o a combination of any such methods of sale; and
o any other method permitted pursuant to applicable law
The selling stockholders may also sell shares under Rule 144 under the
Securities Act of 1933, if available, rather than under this prospectus.
Broker-dealers engaged by the selling stockholders may arrange for
other brokers-dealers to participate in sales. Broker-dealers may receive
commissions or discounts from the selling stockholders (or, if any broker-dealer
acts as agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. Each of the selling stockholders does not expect these commissions
and discounts from such selling stockholder to exceed what is customary in the
types of transactions involved.
The selling stockholders may from time to time pledge or grant a
security interest in some or all of the shares of common stock or warrants owned
by them and, if they default in the performance of their secured obligations,
the pledgees or secured parties may offer and sell the shares of common stock
from time to time under this prospectus, or under an amendment to this
prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act of 1933 amending the list of selling stockholders to include the pledgee,
transferee or other successors in interest as selling stockholders under this
prospectus.
The selling stockholders also may transfer the shares of common stock
in other circumstances, in which case the transferees, pledgees or other
successors in interest will be the selling beneficial owners for purposes of
this prospectus.
The selling stockholders and any broker-dealers or agents that are
involved in selling the shares may be deemed to be "underwriters" within the
meaning of the Securities Act of 1933 in connection with such sales. In such
event, any commissions received by such broker-dealers or agents and any profit
on the resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act of 1933. Each of the selling
stockholders has informed us that they do not have any agreement or
understanding, directly or indirectly, with any person to distribute the common
stock.
We are required to pay all fees and expenses incident to the
registration of the shares. We have agreed to indemnify the selling stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act of 1933.
28
LEGAL MATTERS
The legality of our common stock offered by this prospectus will be
passed upon by Latham & Watkins LLP, San Diego, California.
EXPERTS
Ernst & Young, LLP, our predecessor independent auditors, have audited
our financial statements included in our Annual Report on Form 10-K/A, Amendment
#2, for the year ended March 31, 2003, as set forth in their report (which
contains an explanatory paragraph describing conditions that raise substantial
doubt about our ability to continue as a going concern as described therein in
Note 1 to the financial statements), which is incorporated by reference in this
prospectus and elsewhere in the registration statement. Our financial statements
are incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
CHANGES IN ACCOUNTANTS
On July 8, 2003, we were notified by our independent auditors, Ernst &
Young LLP, that they would not stand for re-election after completion of the
current audit for the year ended March 31, 2003. The reports of Ernst & Young
LLP on our financial statements for the past two fiscal years did not contain an
adverse opinion or a disclaimer of opinion and were not qualified or modified as
to uncertainty, audit scope, or accounting principles except for the inclusion
of an explanatory paragraph which was included in their report for the year
ended March 31, 2003 related to the uncertainty of our ability to continue as a
going concern if we were unable to raise sufficient additional capital.
Additionally, Ernst & Young, LLP's management letter related to their audit of
the March 31, 2003 financial statements contained certain comments regarding
material weaknesses noted. These particular comments related to our internal
controls in our accounting and financial reporting and related resources. We
agreed to the inclusion of the explanatory language and the material weaknesses
which management believes have been properly resolved subsequent to March 31,
2003.
In connection with the audits of our financial statements for each of
the two fiscal years ended March 31, 2003, and in the subsequent interim period,
there were no disagreements with Ernst & Young LLP on any matters of accounting
principles or practices, financial statement disclosure, or auditing scope and
procedures which, if not resolved to the satisfaction of Ernst & Young LLP would
have caused Ernst & Young LLP to make reference to the matter in their report.
We have authorized Ernst & Young LLP to respond fully and without limitation to
any inquiries of a successor independent audit firm retained by us.
Effective on August 13, 2003, our Audit Committee retained Singer Lewak
Greenbaum & Goldstein LLP ("SLGG") as our new independent public accountants to
audit our financial statements for the fiscal year ending March 31, 2004. During
our two most recent fiscal years ended March 31, 2003 and through August 13,
2003, we did not consult with SLGG with respect to the application of accounting
principles to a specified transaction or regarding any of the other matters or
events set forth in Item 304(a) 2(i) and (ii) of Regulation S-K.
WHERE TO FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC. You may read and copy materials we have filed
with the SEC 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 operation of our Public Reference Room. Our SEC filings also
are available to the public on the SEC's Internet site at www.sec.gov. In
addition, you may obtain a copy of our SEC filings at no cost by writing or
telephoning our Chief Financial Officer at:
LifePoint, Inc.
1205 South Dupont Street
Ontario, California 91761
(909) 418-3000
29
The SEC allows us to "incorporate by reference" in this prospectus
information we file with the SEC, which means that we may disclose important
information in this prospectus by referring you to the document that contains
the information. The information incorporated by reference is considered to be a
part of this prospectus, and later information filed with the SEC will update
and supersede this information. We incorporate by reference the documents listed
below and any future filings we make with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, until the offering of
securities covered by this prospectus is completed:
o Our Annual Report on Form 10-K/A - Amendment #2 for the fiscal
year ended March 31, 2003;
o Our Quarterly Report on Form 10-Q for the quarter ended June
30, 2003;
o Our Current Reports on Form 8-K filed on July 15, 2003, August
14, 2003, August, 18, 2003, August 20, 2003 and August 22,
2003; and
o Our Definitive Proxy Statement on Schedule 14A filed with the
SEC on August 18, 2003.
All documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date this Registration Statement is filed
with the SEC and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated by reference
in this Registration Statement and to be a part of it from the respective dates
of filing of such documents. Any statement contained in a document incorporated
or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
We have filed with the SEC a Registration Statement on Form S-3 under
the Securities Act of 1933 relating to the securities that may be offered by
this prospectus. This prospectus is a part of that Registration Statement, but
does not contain all of the information in the Registration Statement. For more
detail concerning us and any securities offered by this prospectus, you may
examine the Registration Statement and the exhibits filed with it at the offices
of the SEC.
You should rely only on the information provided or incorporated by
reference in this prospectus or in the applicable supplement to this prospectus.
You should not assume that the information in this prospectus and the applicable
supplement is accurate as of any date other than the date on the front cover of
the document.
30
========================================= ======================================
NO DEALER, SALESPERSON OR OTHER
PERSON HAS BEEN AUTHORIZED TO GIVE ANY LIFEPOINT, INC.
INFORMATION OR REPRESENTATIONS IN CONNECTION
WITH THIS OFFERING OTHER THAN THOSE
CONTAINED IN THIS PROSPECTUS. IF ANY SUCH
INFORMATION OR REPRESENTATIONS IS GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS
MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY US. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY THE
SECURITIES OFFERED HEREBY TO ANY PERSON IN
ANY STATE OR OTHER JURISDICTION IN WHICH
SUCH OFFER OR SOLICITATION WOULD BE 175,870,488
UNLAWFUL. NEITHER THE DELIVERY OF THIS SHARES
PROSPECTUS NOR ANY SALE MADE HEREUNDER OF COMMON STOCK
SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY ($.001 PAR VALUE)
IMPLICATION THAT THE INFORMATION CONTAINED OFFERED BY
HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT SELLING STOCKHOLDERS
TO THE DATE HEREOF.
---------------
------------
PROSPECTUS
------------
__________ __, 2003
========================================= ======================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Our estimated expenses in connection with the distribution of the
securities being registered are as set forth in the following table:
SEC Registration Fee $ 7,928
Legal Fees and Expenses 30,000
Accounting Fees and Expenses 5,200
Printing and Engraving Expenses 5,000
Miscellaneous 1,872
------------
Total $ 50,000
============
All of the above items except the registration fee are estimates.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the General Corporation Law of the State of Delaware
(the "DGCL") permits a Delaware corporation to indemnify officers, directors,
employees and agents for actions taken in good faith and in a manner they
reasonably believed to be in, or not opposed to, the best interests of the
corporation, and with respect to any criminal action, which they had no
reasonable cause to believe was unlawful. The DGCL also provides that a
corporation may advance the expenses of defense (upon receipt of a written
undertaking to reimburse the corporation if it is ultimately determined that
such individual is not entitled to indemnification) and must reimburse a
successful defendant for expenses, including attorneys' fees, actually and
reasonably incurred. The DGCL further provides that indemnification may not be
made for any claim, issue or matter as to which a person has been adjudged by a
court of competent jurisdiction, after exhaustion of all appeals therefrom, to
be liable to the corporation, except only to the extent a court determines that
the person is entitled to indemnity for such expenses that such court deems
proper. The DGCL also permits a corporation to purchase and maintain liability
insurance for its directors and officers.
LifePoint's Restated Certificate of Incorporation and Restated Bylaws
provide that LifePoint may indemnify any and all persons whom it shall have
power to indemnify under the DGCL from and against any and all of the expenses,
liabilities, or other matters referred to in or covered by said DGCL. LifePoint
maintains insurance on behalf of its directors and officers, insuring them
against liabilities that they may incur in such capacities or arising out of
such status.
ITEM 16. EXHIBITS
The Exhibit Index is attached hereto on page E-1.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the SEC pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in this registration statement; provided, however,
that subparagraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed with or furnished to the SEC by the Registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this
registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the Registration Statement is on Form S-3, Form
S-8 or Form F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the Company pursuant to Section 13 or 15(d) of
the Exchange Act that are incorporated by reference in this 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 herein, 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.
(b) The undersigned registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 that is incorporated by reference
in this registration statement shall be deemed to be a new registration
statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to existing provisions or otherwise, the
registrant has been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act of 1933 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 our counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-2
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ontario, County of San Bernardino, State of
California, on October 2, 2003.
LIFEPOINT, INC.
By: /s/ LINDA H. MASTERSON
--------------------------
LINDA H. MASTERSON
PRESIDENT AND CHIEF EXECUTIVE OFFICER
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
Each person whose signature appears below hereby constitutes and
appoints Linda H. Masterson his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution for him in any and all capacities,
to sign any and all amendments (including post-effective amendments) to this
Registration Statement, or any registration statement for the same offering that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with exhibits thereto and other documents in
connection therewith or in connection with the registration of the common stock
offered hereby under the Securities Act of 1933, with the SEC, granting unto
such attorney-in-fact full power and authority to do and perform each and every
act and thing requisite and necessary in connection with such matters and hereby
ratifying and confirming all that such attorney-in-fact may do or cause to be
done by virtue hereof.
SIGNATURE TITLE
- --------- -----
/S/ LINDA H. MASTERSON Principal Executive Officer and Director
- -----------------------------
Linda H. Masterson
/S/ DONALD W. RUTHERFORD Principal Financial Officer
- -----------------------------
Donald W. Rutherford
/S/ STAN YAKATAN Director (Chairman)
- -----------------------------
Stan Yakatan
/S/ CHARLES J. CASAMENTO Director
- -----------------------------
Charles J. Casamento
/S/ PETER S. GOLD Director
- -----------------------------
Peter S. Gold
/S/ PAUL SANDLER Director
- -----------------------------
Paul Sandler
/S/ ROGER STOLL Director
- -----------------------------
Roger Stoll
/S/ NUNO BRANDOLINI Director
- -----------------------------
Nuno Brandolini
II-3
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
------ -----------
3.1 Amended and Restated Certificate of Incorporation of
LifePoint, Inc.
4.1(2) Form of Common Stock Certificate of LifePoint, Inc.
5.1 Opinion of Latham & Watkins LLP.
10.1(1) Securities Purchase Agreement dated July 14, 2003 by and among
the Company and the purchasers who are signatories thereto.
10.2(1) Form of Common Stock Purchase Warrant dated July 14, 2003
issued by the Company.
10.3(1) Registration Rights Agreement dated July 14, 2003 by and among
the Company and the purchasers who are signatories thereto.
10.4(1) Amendment No. 1 to Note and Warrant Purchase Agreement dated
July 14, 2003 by and between the Company and Jonathan Pallin.
10.5(1) Amendment No. 1 to Convertible Loan and Security Agreement
dated July 14, 2003 by and between the Company and the General
Conference Corporation of Seventh-Day Adventists.
10.6(1) Call Option and Subordination Agreement dated July 14, 2003 by
and among the Company, the General Conference Corporation of
Seventh-Day Adventists, Jonathan Pallin and the purchasers of
preferred stock who are signatories thereto.
10.7(1) Amendment Agreement dated May 30, 2003 by and among the
Company and the requisite holders of Series C Preferred Stock
of the Company.
10.8(1) Amendment Agreement dated June 27, 2003 by and among the
Company and the requisite holders of Series C Preferred Stock
of the Company.
10.9 Form of Common Stock Purchase Warrant dated November 12, 2002
between the Company and the General Conference Corporation of
Seventh-Day Adventists.
10.10 Form of Common Stock Purchase Warrant dated February 19, 2003
between the Company and Jonathan J. Pallin.
23.1 Consent of Latham & Watkins LLP (contained in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, Independent Auditors.
24.1 Powers of Attorney (contained on the signature page of this
Registration Statement).
- -----------------
(1) Filed as an exhibit to LifePoint, Inc.'s Current Report on Form 8-K
filed with the SEC on July 15, 2003, and incorporated herein by
reference.
(2) Filed as an exhibit to LifePoint, Inc.'s Registration Statement on Form
S-1, as amended (File No. 33-67186), and incorporated herein by
reference.
II-4