As filed with the Securities and Exchange Commission on January 17, 1997
June 30, 2017
Registration No. 333-__________
333-_______________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON,
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
BIOMERICA, INC.
(Exact name of registrant as specified in its charter)
Delaware 95-2645573
(State of other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
1533 Monrovia
BIOMERICA, INC. (Exact name of registrant as specified in its charter) | |||
Delaware (State or other jurisdiction of incorporation or organization) | 95-2645573 (I.R.S. Employer Identification Number) | ||
17571 Von Karman Avenue
Newport Beach,
Irvine, California 92663
(714)92614
(949) 645-2111
(Address,
(Address, including zip code, and telephone number, including area code, of registrants'registrant’s principal executive offices)
Joseph H.
Zackary Irani President Copy To:
Chairman & Chief Executive Officer
Biomerica, Inc. Joseph Lesko, Esq.
1533 Monrovia
17571 Von Karman Avenue Solomon Ward Seidenwurm & Smith
Newport Beach,
Irvine, California 92663 401 B Street, Suite 1200
(714)92614
(949) 645-2111 San Diego, California 92101
(619) 231-0303
(Name,
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christopher D. Ivey, Esq. Jason Lee, Esq. Stradling Yocca Carlson & Rauth, P.C. 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 (949) 725-4000 |
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement as determined by
market conditions.
becomes effective.
If the only securities being registered on this Form S-3 are being offered pursuant to dividend or interest reinvestment plans, please check the following box. / /
o
If any of the securities being offeredregistered 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/
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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. / /
o
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 and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / /
o
If delivery ofthis Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the prospectus is expected to be madeCommission pursuant to Rule 434,
please462(e) under the Securities Act, check the following box. / /
o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer o | Accelerated filer o | ||
Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company x | ||
Emerging Growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered |
|
|
| Proposed maximum aggregate offering price |
|
| Amount of registration fee(2) |
| ||
Common stock, $0.08 par value per share(1) |
|
|
| $ | 45,000,000 |
|
| $ | 5,216 |
|
(1) | Pursuant to Rule 416 under the Securities Act of |
(2) | Calculated pursuant to Rule 457(o) of the Securities Act based on the proposed maximum |
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 determiningthe Securities Act of 1933 or until the registration feestatement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to Rule 457(c)said Section 8(a), based onmay determine.
PRELIMINARY PROSPECTUS
SUBJECT TO COMPLETION, DATED June 30, 2017
$45,000,000
BIOMERICA, INC.
Common Stock
From time to time, we may offer and sell shares of our common stock with total gross proceeds of up to $45,000,000.
This prospectus provides a general description of the highterms that may apply to an offering of our common stock. Each time we offer shares of our common stock, we will provide a supplement to this prospectus that contains specific information about the offering. We may also authorize one or more free writing prospectuses to be provided to you in connection with these offerings. The prospectus supplement and low sales pricesany related free writing prospectus may also add, update or change information contained in this prospectus. You should carefully read this prospectus, the applicable prospectus supplement and any related free writing prospectus, as well as any documents incorporated by reference, before you invest in our common stock.
This prospectus may not be used to consummate a sale of the
registrant's Common Stock as reportedour common stock unless accompanied by a prospectus supplement.
Our common stock is traded on the NASDAQ SmallCapCapital Market under the symbol “BMRA.” On June 29, 2017, the last reported sale price of our common stock was $2.66 per share.
As of June 29, 2017, the aggregate market value of our outstanding common stock held by non-affiliates was approximately $17,234,808 based on January 13,
1997.
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 THAT SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION
8(a), MAY DETERMINE.
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PROSPECTUS
333,333 SHARES
BIOMERICA, INC.
COMMON STOCK
This6,479,251 shares of common stock held by non-affiliates and the last reported sale price of our common stock on such date. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell shares pursuant to this prospectus ("Prospectus") relateswith a value of more than one-third of the aggregate market value of our common stock held by non-affiliates in any 12-month period, so long as the aggregate market value of our common stock held by non-affiliates is less than $75,000,000. During the 12 calendar months prior to, and including, the offeringdate of this prospectus, we have not sold any securities pursuant to General Instruction I.B.6 of Form S-3.
We may sell shares of our common stock directly to investors, through agents designated from time to time by certain persons namedor to or through underwriters or dealers, on a continuous or delayed basis. For additional information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this Prospectus (the "Selling Stockholders")prospectus. If any agents or underwriters are involved in the sale of upany shares of our common stock with respect to 333,333 shares (the "Shares") of Common Stock, $.08 par value per share,
of Biomerica, Inc. (the "Company"). The Company will not receive any proceeds
from the offering of the Shares by the Selling Stockholders (the "Offering"),
but the Company did receive one million dollars in gross proceeds from the
initial private placement of the Shares to the Selling Stockholders.
The Selling Stockholders directly, or through agents, dealers,
underwriters, or market makers, may offer and sell from time to time all or any
part of the Shares in amounts and on terms to be determined at the time of sale.
To the extent required, the specific Shares to be sold,which this prospectus is being delivered, the names of the Selling
Stockholders, the respective purchase price and public offering price, the names
of any such agent, dealeragents or underwriter,underwriters and any applicable commissionfees, commissions, discounts or discount with respect to a particular offerover-allotment options will be set forth in an accompanying
Prospectus Supplement. Offers or salesa prospectus supplement. The price to the public of such shares and the Shares have not been registered or
qualifiednet proceeds we expect to receive from such sale will also be set forth in a prospectus supplement.
Investing in our common stock involves a high degree of risk. You should review carefully the risks and uncertainties described under the lawsheading “Risk Factors” contained in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of any country other thanthese securities or passed upon the United States. See "Planaccuracy or adequacy of Distribution."
The aggregate proceedsthis prospectus. Any representation to the Selling Stockholders from the sale of the
Shares will be the purchase price of the Shares sold less the aggregate agents'
commissions and underwriters' discounts, if any. By agreement, the Company will
pay substantially all of the expenses incident to the registration of the
Shares, except for underwriting discounts and selling commissions associated
with the sale of the Shares, all of which shall be paid by the Selling
Stockholders. See "Plan of Distribution" herein forcontrary is a description of
indemnification arrangements for agents, dealers and underwriters.
THE SHARES OFFERED HEREBY INVOLVE A HIGH DEGREE OF RISK. SEE
"RISK FACTORS" BEGINNING ON PAGE 5.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL.
criminal offense.
The date of this Prospectusprospectus is January ____, 1997.
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AVAILABLE INFORMATION
The Company, 2017.
TABLE OF CONTENTS
Page | |
ABOUT THIS PROSPECTUS | 1 |
SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION | 2 |
ABOUT THE COMPANY | 3 |
RISK FACTORS | 4 |
USE OF PROCEEDS | 5 |
DESCRIPTION OF CAPITAL STOCK | 6 |
PLAN OF DISTRIBUTION | 7 |
LEGAL MATTERS | 9 |
EXPERTS | 9 |
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE | 10 |
WHERE YOU CAN FIND MORE INFORMATION | 11 |
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ABOUT THIS PROSPECTUS
This prospectus is subject to the informational requirementspart of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other informationa registration statement that we filed with the Securities and Exchange Commission (the "Commission"“SEC”). using a “shelf” registration process. Under this shelf registration process, we may sell shares of our common stock in one or more offerings up to a total aggregate offering price of $45,000,000. This prospectus provides you with a general description of our common stock.
All references to “Company” “we,” “our” or “us” refer solely to Biomerica, Inc.
Each time we sell shares of our common stock under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement and any related free writing prospectus that we may authorize to be provided to you may also add, update or change information contained in this prospectus or in any documents that we have incorporated by reference into this prospectus. You should read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Incorporation of Certain Information by Reference,” before investing in our common stock.
Neither we, nor any agent, underwriter, dealer, salesperson or other person has authorized any person to give any information or to make any representations other than those contained or incorporated by reference in this prospectus, any accompanying prospectus supplement or any related free writing prospectus in connection with the offer made by this prospectus, any accompanying prospectus supplement or any related free writing prospectus. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or any accompanying prospectus supplement as if we had authorized it.
This prospectus, any accompanying prospectus supplement or any related free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor does this prospectus, any accompanying prospectus supplement or any related free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction.
You should not assume that the information contained in this prospectus, any accompanying prospectus supplement or any related free writing prospectus is correct on any date after their respective dates or that any information we have incorporated by reference is correct on any date after the date of the document incorporated by reference, even though this prospectus, any accompanying prospectus supplement or any related free writing prospectus may be delivered or securities may be sold on a later date.
Investing in our securities involves a high degree of risk. You should carefully consider the section entitled “Risk Factors” in this prospectus, any accompanying prospectus supplement and any related free writing prospectus before you invest in our securities.
You should also carefully read the additional information described in the sections entitled “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information” before you invest in our securities.
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SPECIAL NOTE REGARDING FORWARD-LOOKING INFORMATION
This prospectus, any accompanying prospectus supplement, and the documents we incorporate by reference in this prospectus and any accompanying prospectus supplement, contains forward-looking statements within the meaning of the federal securities laws, which statements are subject to substantial risks and uncertainties. These forward-looking statements are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact are forward-looking statements. We have attempted to identify forward-looking statements by using words such as “may,” “believe,” “will,” “could,” “project,” “anticipate,” “expect,” “estimate,” “should,” “continue,” “potential,” “plan,” “forecasts,” “goal,” “seek,” “intend,” other forms of these words or similar words or expressions or the negative thereof.
We have based our forward-looking statements on our expectations and projections about trends affecting our business and industry and other future events. Although we do not make forward-looking statements unless we believe we have a reasonable basis for doing so, we cannot guarantee their accuracy. Forward-looking statements are subject to substantial risks and uncertainties that could cause our future business, financial condition, results of operations or performance, to differ materially from our historical results or those expressed or implied in any forward-looking statement. Some of the risks and uncertainties that may cause actual results to differ from those expressed or implied in the forward-looking statements are described in the section entitled “Risk Factors” in this prospectus and in any accompanying prospectus supplement, as well as in our other filings with the SEC. In addition, actual results may differ as a result of additional risks and uncertainties of which we are currently unaware or which we do not currently view as material to our business. For these reasons, investors are cautioned not to place undue reliance on any forward-looking statements.
You should read this prospectus in its entirety, together with any accompanying prospectus supplement, the documents that we file as exhibits to the registration statement on Form S-3 (ofof which this Prospectusprospectus is a part) (the "Registration
Statement"),part, and the exhibitsdocuments that we incorporate by reference into this prospectus and schedules formingany accompanying prospectus supplement, with the understanding that our future results may be materially different from what we currently expect. The forward-looking statements we make speak only as of the date on which they are made. We expressly disclaim any intent or obligation to update any forward-looking statements after the date hereof to conform such statements to actual results or to changes in our opinions or expectations, except as required by applicable law or the rules of the NASDAQ Stock Market. If we do update or correct any forward-looking statements, investors should not conclude that we will make additional updates or corrections.
We qualify all of our forward-looking statements by these cautionary statements.
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ABOUT THE COMPANY
The following is a summary of what we believe to be the most important aspects of our business. Please read the additional information in the sections entitled “Incorporation of Certain Documents by Reference” and “Where You Can Find More Information.”
Our Company
We are a medical device company that develops, manufactures, and markets medical diagnostic products designed for the early detection and monitoring of chronic diseases and medical conditions. Our medical diagnostic products are sold worldwide in two primary markets: 1) clinical laboratories and 2) point of care (physicians’ offices and over-the-counter drugstores). Our diagnostic test kits are used to analyze blood, urine, or fecal specimens from patients in the diagnosis of various diseases and other medical complications, or to measure the level of specific hormones, antibodies, antigens or other substances, which may exist in the human body in extremely small concentrations. Our focus is on products for gastrointestinal, food intolerances, diabetes and esoteric tests. These diagnostic test products utilize immunoassay technology.
Corporate Information
We were originally incorporated in Delaware in September 1971 as Nuclear Medical Systems, Inc. We also have two wholly owned subsidiaries, Biomerica de Mexico, established for future use as a maquiladora, and BioEurope GmbH, which acts as a distributor of Biomerica products in certain markets. Our principal executive offices are located at 17571 Von Karman Avenue, Irvine, California 92614, and our telephone number is (949) 645-2111. Our corporate website address is www.biomerica.com. Information contained on or accessible through our website is not a part thereofof this prospectus, and the reports,
proxy statements and other information filed byinclusion of our website address in this prospectus is an inactive textual reference only.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company” as defined in the Company with the Commission
in accordance withSecurities Exchange Act of 1934, or the Exchange Act, can be inspected and copied at the
Commission's Public Reference Section, 450 Fifth Street, N.W., Washington, D.C.
20549, and at the following regional officeshave elected to take advantage of certain of the Commission: Seven World
Trade Center, 13th Floor, New York, New York 10048scaled disclosures available to smaller reporting companies.
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RISK FACTORS
Investing in our securities involves a high degree of risk. Before making an investment decision, you should carefully consider the risks described in (i) the sections entitled “Risk Factors” in our most recent Annual Report on Form 10-K and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. Copies of such material can
be obtained from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains a Web site that contains reports, proxy and information statementssubsequent quarterly, annual and other information regarding registrants that file electronicallyreports, each as filed with the Commission. The addressSEC, which are incorporated by reference in this prospectus in their entirety and (ii) any amendment or updates to our risk factors reflected in subsequent filings with the SEC, including in any applicable prospectus supplement or related free writing prospectus. For more information, see the sections entitled “Incorporation of the Web site is http://www.sec.gov.Certain Documents by Reference” and “Where You Can Find More Information.” Our business, financial condition or results of operations could be materially adversely affected by any of these risks. In addition, the trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our business, financial condition or results of operations.
This prospectus and the documents we incorporate by reference in this prospectus contain forward-looking statements that involve risks and uncertainties. Our actual results could differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks described in this prospectus and in the documents incorporated by reference in this prospectus. For more information, see “Special Note Regarding Forward-Looking Information.”
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USE OF PROCEEDS
We will retain broad discretion over the use of the net proceeds from the sale of our common stock offered hereby. Except as described in any prospectus supplement or any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of our common stock offered hereby for working capital and general corporate purposes, which may include capital expenditures, debt repayment, research and development, sales and marketing and general and administrative expenses. We may also use a portion of the net proceeds to acquire or invest in businesses, products and technologies that are complementary to our own, although we have no current plans, commitments or agreements with respect to any such acquisitions or investments as of the date of this prospectus. We will set forth in the applicable prospectus supplement or free writing prospectus our intended use for the net proceeds received from the sale of any common stock sold pursuant to the prospectus supplement or free writing prospectus. Our management will have broad discretion in the allocation of the net proceeds from this offering.
Pending the application of the net proceeds, we may invest the net proceeds in short-term, investment grade, interest-bearing securities, certificates of deposit or direct or guaranteed obligations of the U.S. government.
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DESCRIPTION OF CAPITAL STOCK
The following is a summary of all material characteristics of our capital stock as set forth in our First Amended and Restated Certificate of Incorporation and Bylaws. The summary does not purport to be complete and is qualified in its entirety by reference to our First Amended and Restated Certificate of Incorporation and Bylaws, copies of which have been filed as exhibits to the registration statement of which this prospectus is a part.
Common Stock
We may issue shares of our common stock from time to time. We are authorized to issue 25,000,000 shares of common stock, par value $0.08 per share. As of June 29, 2017, there were 8,511,173 shares of common stock issued and outstanding. The holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders. The holders of common stock are not entitled to cumulative voting rights with respect to the election of directors, and as a consequence, minority stockholders will not be able to elect directors on the basis of their votes alone. Subject to preferences that may be applicable to any shares of preferred stock issued in the future, holders of common stock are entitled to receive dividends on a pro rata basis as may be declared by our board out of funds legally available therefor. In the event of a liquidation, dissolution or winding up of our Company, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preference of any then outstanding preferred stock. Holders of common stock have no preemptive rights and no right to convert their common stock into any other securities. There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of common stock are, and all shares of common stock to be outstanding upon completion of this offering will be, fully paid and nonassessable.
Anti-Takeover Effects of Provisions of Our First Amended and Restated Certificate of Incorporation, Bylaws and Delaware Law
We are subject to the provisions of Section 203 of the Delaware General Corporation Law. Section 203 prohibits a publicly-held Delaware corporation from engaging in a “business combination” with an “interested stockholder” for a period of three years after the person became an interested stockholder, unless the business combination is currently quotedapproved in a prescribed manner. A “business combination” includes mergers, asset sales and other transactions resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with affiliates and associates, owns, or within the prior three years did own, 15% or more of the corporation’s voting stock.
Our First Amended and Restated Certificate of Incorporation and Bylaws, among other things, prohibit cumulative voting in the election of directors. The First Amended and Restated Certificate of Incorporation authorizes the board of directors to issue up to 5,000,000 shares of preferred stock and to determine the rights, preferences and privileges of these shares of preferred stock without any further vote or action by the stockholders, and specifies that the authorized number of directors may be changed only by a resolution of the board of directors. Special meetings of the stockholders may be called only by the board of directors, the chairman of the board of directors or the President or Secretary. The provisions described above could have the effect of making it more difficult for a third-party to acquire a majority of our outstanding voting stock, or delay, prevent or deter a merger, acquisition or tender offer in which our stockholders could receive a premium for their shares, a proxy contest or other change in our management.
NASDAQ Capital Market Listing
Our common stock is listed on the NASDAQ SmallCap ("NASDAQ")Capital Market and similar
information concerningtraded under the Company cansymbol “BMRA.” On June 29, 2017, the last reported sale price for our common stock on the NASDAQ Capital Market was $2.66 per share.
Transfer Agent and Registrar
The transfer agent and registrar for the common stock is Interwest Transfer Co. The transfer agent and registrar’s address is 1981 East 4800 So, Suite 100, Salt Lake City, Utah 84117.
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PLAN OF DISTRIBUTION
We may sell shares of our common stock from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods. We may sell shares of our common stock to or through underwriters or dealers, through agents, or directly to one or more purchasers. We may distribute shares of our common stock from time to time in one or more transactions:
· at a fixed price or prices, which may be inspected and copiedchanged;
· at market prices prevailing at the officestime of sale;
· at prices related to such prevailing market prices; or
· at negotiated prices.
We may also sell shares of our common stock covered by this registration statement in an “at the market offering” as defined in Rule 415 under the Securities Act. Such offering may be made into an existing trading market for such securities in transactions at other than a fixed price, either:
· on or through the facilities of the NASDAQ Capital Market or any other stock exchange or quotation or trading service on which our common stock may be listed, quoted or traded at the time of sale; and/or
· to or through a market maker other than on the NASDAQ Capital Market or such other stock exchanges or quotation or trading services.
Such at-the-market offerings, if any, may be conducted by underwriters acting as principal or agent.
A prospectus supplement or supplements (and any related free writing prospectus that we may authorize to be provided to you) will describe the terms of the offering of our common stock, including, to the extent applicable:
· the name or names of any underwriters, dealers or agents, if any;
· the purchase price of the common stock and the proceeds we will receive from the sale;
· any over-allotment options under which underwriters may purchase additional common stock from us;
· any agency fees or underwriting discounts and other items constituting agents’ or underwriters’ compensation;
· any public offering price;
· any discounts or concessions allowed or reallowed or paid to dealers; and
· any securities exchange or market on which our common stock may be listed.
Only underwriters named in the prospectus supplement are underwriters of the common stock offered by the prospectus supplement.
If underwriters are used in the sale, they will acquire the common stock for their own account and may resell the common stock from time to time in one or more transactions at a fixed public offering price or at varying prices determined at the time of sale. The NASDAQ Operations, 1735 K Street, N.W., Washington, D.C. 20006.
The Company has filedobligations of the underwriters to purchase the common stock will be subject to the conditions set forth in the applicable underwriting agreement. We may offer our common stock to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. Subject to certain conditions unless otherwise specified in the prospectus supplement, the underwriters will be obligated to purchase all of the common stock offered by the prospectus supplement. Any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may change from time to time. We may use underwriters with whom we have a material relationship. We will describe in the Commissionprospectus supplement, naming the Registration Statementunderwriter, the nature of any such relationship.
We may sell our common stock directly or through agents we designate from time to time. We will name any agent involved in the offering and sale of our common stock, and we will describe any commissions we will pay the agent in the prospectus supplement. Unless the prospectus supplement states otherwise, our agent will act on a best-efforts basis for the period of its appointment.
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We may authorize agents or underwriters to solicit offers by certain types of institutional investors to purchase common stock from us at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. We will describe the conditions to these contracts and the commissions we must pay for solicitation of these contracts in the prospectus supplement.
We may provide agents and underwriters with indemnification against civil liabilities related to any offering pursuant to this prospectus, including liabilities under the Securities Act, of 1933, as amended (the "Securities Act"),or contribution with respect to payments that the Shares.agents or underwriters may make with respect to these liabilities. Agents and underwriters may engage in transactions with, or perform services for, us in the ordinary course of business.
Any underwriter may engage in overallotment, stabilizing transactions, short covering transactions and penalty bids in accordance with Regulation M under the Exchange Act. Overallotment involves sales in excess of the offering size, which create a short position. This Prospectus doesshort sales position may involve either “covered” short sales or “naked” short sales. Covered short sales are short sales made in an amount not containgreater than the underwriters’ over-allotment option to purchase additional shares in the offering. The underwriters may close out any covered short position either by exercising their over-allotment option or by purchasing shares of our common stock in the open market. To determine how they will close the covered short position, the underwriters will consider, among other things, the price of shares available for purchase in the open market, as compared to the price at which they may purchase shares through the over-allotment option. Naked short sales are short sales in excess of the over-allotment option. The underwriters must close out any naked short position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriters are concerned that, in the open market after pricing, there may be downward pressure on the price of the shares that could adversely affect investors who purchase shares in the offering. Stabilizing transactions permit bids to purchase the underlying security for the purpose of fixing the price of the security so long as the stabilizing bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a dealer when the securities originally sold by the dealer are purchased in a covering transaction to cover short positions.
Any underwriters who are qualified market makers on the NASDAQ Capital Market, or any other stock exchange or which our common stock may be listed at the time of sale, may engage in passive market making transactions in our common stock on the NASDAQ Capital Market or such other stock exchange in accordance with Rule 103 of Regulation M, during the business day prior to the pricing of the offering, before the commencement of offers or sales of the shares of our common stock. Passive market makers must comply with applicable volume and price limitations and must be identified as passive market makers. In general, a passive market maker must display its bid at a price not in excess of the highest independent bid for our common stock; if all independent bids are lowered below the informationpassive market maker’s bid, however, the passive market maker’s bid must then be lowered when certain purchase limits are exceeded.
Similar to other purchase transactions, an underwriter’s purchase to cover the syndicate short sales or to stabilize the market price of our common stock may have the effect of raising or maintaining the market price of our common stock or preventing or mitigating a decline in the market price of our common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open market. The imposition of a penalty bid might also have an effect on the price of the common stock if it discourages resales of the shares.
Neither we nor the underwriters makes any representation or prediction as to the effect that the transactions described above may have on the price of the common stock offered by this prospectus. If such transactions are commenced, they may be discontinued without notice at any time.
8
LEGAL MATTERS
Certain legal matters, including the validity of the issuance of the shares of common stock offered by this prospectus will be passed upon for us by Stradling Yocca Carlson & Rauth, P.C., Newport Beach, California.
EXPERTS
PKF, LLP, (formerly PKF, Certified Public Accountants, A Professional Corporation) an independent registered public accounting firm, has audited the consolidated financial statements of Biomerica, Inc. and Subsidiaries included in our Annual Report on Form 10-K, for the years ended May 31, 2015 and 2016 as set forth in the Registration Statement, certain portions oftheir report on our consolidated financial statements, which have been omitted
as permittedis incorporated by the Commission's rules and regulations. Statements containedreference in this Prospectus as toprospectus and elsewhere in this registration statement. Such consolidated financial statements of Biomerica, Inc. and Subsidiaries are incorporated by reference in reliance on PKF, LLP’s reports, given on the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copyauthority of such contract or other document filedfirm as an exhibit to the Registration Statement,
each such statement being qualifiedexperts in all respects by such referenceaccounting and the
exhibits and schedules thereto. For further information regarding the Company
and the Shares, reference is hereby made to the Registration Statement and such
exhibits and schedules, which may be obtained from the Commission at its
principal office in Washington, D.C. upon payment of the fees prescribed by the
Commission.
auditing.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to “incorporate” into this prospectus information that we file with the SEC in other documents. This means that we can disclose important information to you by referring to other documents listed belowthat contain that information. Any information that we incorporate by reference into this prospectus is considered part of this prospectus.
Information contained in this prospectus and information that we file with the SEC in the future and incorporate by reference in this prospectus automatically modifies and supersedes previously filed information, including information in previously filed documents or reports that have been filed by the Company under the Exchange
Act with the Commission and are incorporated herein by reference:
a. The Company's Annual Report on Form 10-KSB for the fiscal year ended May 31,
1996, filed on August 27, 1996;
b. The Company's Quarterly Report on Form 10-QSB for the three months ended
November 30, 1996, filed on January 15, 1997;
c. The Company's Quarterly Report on Form 10-QSB for the three months ended
August 31, 1996, filed on October 11, 1996;
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d. The Company's definitive Proxy Statement mailed on or about September 24,
1996; and
e. The description of the Company's Common Stock contained in the Registration
Statement on Form 10 filed on September 12, 1978.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares shall be deemed to be incorporated by reference in this Prospectus and to be part hereof from the date
of filing such documents.
Any statement contained herein or in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectusprospectus, to the extent that a statement
contained herein (or in the applicable Prospectus Supplement) or in any other
subsequently filed document that also isnew information differs from or is deemed to be incorporated by
reference herein modifies or supersedes such statement.inconsistent with the old information. Any such statementinformation so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus.
Copiesprospectus.
The following documents previously filed by us with the SEC are incorporated in this prospectus by reference:
· Our Annual Report on Form 10-K for the year ended May 31, 2016, filed with the SEC on August 29, 2016;
· Our Quarterly Reports on Form 10-Q for the quarters ended August 31, 2016, November 30, 2016, and February 28, 2017, filed with the SEC on October 17, 2016, January 17, 2017, and April 14, 2017;
· Our Definitive Proxy Statement on Schedule 14A, filed with the SEC on September 28, 2016;
· Our Current Reports on Form 8-K filed with the SEC on July 18, 2016, August 10, 2016 and September 12, 2016; and
· The description of our common stock set forth in the Registration Statement on Form 8-A filed with the SEC on August 23, 2016 and any other amendment or report filed for the purpose of updating such description.
We also incorporate by reference all documents (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are incorporated herein by reference (not
including the exhibitsrelated to such items) filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date the initial registration statement is initially filed and prior to the termination of this offering, provided that nothing in this prospectus shall be deemed to incorporate portions of documents unless such exhibits are specificallyor information “furnished” and not “filed” with the SEC.
You should rely only on the information incorporated by reference intoor provided in this prospectus or any accompanying prospectus supplement. We have not authorized anyone to provide you with different information.
You should not assume that the information thatcontained in this Prospectus
incorporates)prospectus and any accompanying prospectus supplement is correct on any date after their respective dates, even though this prospectus or any prospectus supplement is delivered or securities are sold on a later date.
We will be provided without chargeprovide to each person, including any beneficial owner, to whom this Prospectusa prospectus is delivered, upon oral or written or oral
request.request, a copy of any document incorporated by reference at no cost. Requests should be directedmade to:
Zackary Irani
Chairman & Chief Executive Officer
Biomerica, Inc.
17571 Von Karman Avenue Irvine, California 92614
(949) 645-2111
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WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read, without charge, and copy the documents we file at the SEC’s public reference rooms in Washington, D.C. at 100 F Street, NE, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms. Our SEC filings are also available to the Corporate Secretarypublic at no cost from the SEC’s website at http://www.sec.gov.
This prospectus constitutes a part of the Company,
1533 Monrovia Avenue, Newport Beach, California 92663 (telephone number: (714)
645-2111).
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THE COMPANY
Biomerica, Inc. ("Biomerica") is primarily engaged in the development,
manufacture and marketing of medical diagnostic test kits. In addition, since
1984, Biomerica has followed a corporate strategy of developing new business
opportunities through selected investments in companies in which synergistic
benefits could be realized through the sharing of technology, corporate
administration and/or capital resources. Each of these companies is or has been
in a business involving the application of advanced technologies in the
biomedical, pharmaceutical, and/or other applied sciences. As of May 31, 1996,
Biomerica was the beneficial owner of 30% of the voting securities of Lancer
Orthodontics, Inc. ("Lancer") and 74% of the voting securities of Allergy Immuno
Technologies, Inc. ("AIT").
The Company was incorporated in Delaware in September 1971 under the
name "Nuclear Medical Systems, Inc." The Company changed its corporate name in
February 1983 to NMS Pharmaceuticals, Inc. and in November 1987 to Biomerica,
Inc. Its principal place of business and executive offices are located at 1533
Monrovia Avenue, Newport Beach, California 92663 (telephone number 714-645-2111,
telefax number 714-722-6674).
In addition to the Company's ownership of Lancer, the President of the
Company beneficially owns approximately 19% of the outstanding Lancer common
stock and is an officer and director of Lancer. Another of the Company's
directors also serves on Lancer's board of directors and two Biomerica employees
also serve as directors of Lancer. The Company controls Lancer and AIT and their
financial statements are consolidated with those of Biomerica.
Biomerica develops, manufactures, and sells medical diagnostic products
designed to detect certain medical conditions and diseases in the areas of
certain cancers, heart attack, fertility, gastritis and ulcers, diabetes and
Candida. Since the late 1970's, Biomerica has developed, produced and sold
immunoassay diagnostic test kits, which are used by hospitals, clinical
laboratories and medical researchers to analyze blood or urine from patients in
the diagnosis of various diseases and other medical complications, or to measure
the level of specific hormones or other substances which may exist in the human
body in extremely small concentrations.
Lancer develops, manufactures, and sells high technology orthodontic
products including, among others, brackets and wires. Lancer is well established
in the field of orthodontics and its products are sold worldwide through
distributors and a direct sales force.
AIT provides esoteric clinical testing services to doctors, clinics and
drug firms in specialized areas of allergy and sensitivity determinations. In
the meantime, as a consequence of its development effort in the field of allergy
treatment, AIT owns four patents covering several inventions relating to the
therapeutic aspect of allergy. AIT intends to utilize these patents to develop
new allergy drugs on its own and/or in conjunction with other companies.
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RISK FACTORS
The following factors should be considered carefully with the
information provided elsewhere in this Prospectus in evaluating an investment in
the Shares offered hereby.
This Prospectus contains forward-looking statements that involve risks
and uncertainties. The Company's actual results could differ materially from
those anticipated in these forward-looking statements as a result of certain
factors, including those set forth in the following risk factors and elsewhere
in this Prospectus.
Competition. Human immunodiagnostics is an intensely competitive field
in which there are a number of well-established companies. Many of Biomerica's
competitors have substantially greater financial resources and larger, more
established sales, marketing, and service organizations. The primary bases of
competition in the immunodiagnostic testing market are throughput, ease-of-use,
price, breadth of test menu, quality of results and service. There can be no
assurance that Biomerica will be able to compete successfully on any of these
bases.
The Company believes that Biomerica's principal competitors are large
companies with a diagnostic division such as Abbott Laboratories, Becton,
Dickinson and Company, Boehringer Mannheim, GmbH, Chiron/Ciba-Corning
Diagnostics Corporation and Johnson & Johnson. Each of these companies has an
established position in the clinical laboratory test market with systems based
on traditional immunoassay technology. No assurance can be given that
Biomerica's products will compete successfully with existing or future products
of such competitors or that new competitors will not enter the market with
competing technologies.
Additionally, many of Lancer's competitors have substantially greater
financial resources and larger, more established sales, marketing, and service
organizations. Lancer believes that there are seven major competitors in the
orthodontic products field; Unitek, a division of 3M, "A" Company, Ormco, a
division of Sybron, RMO Inc., American Orthodontics, GAC and Dentaurum. The
primary bases of competition in the orthodontic market are price, quality and
service. There can be no assurance that Lancer will be able to compete
successfully on any of these bases.
Intellectual Property, Patents and Licenses. In general, Biomerica does
not seek patent protection for its products, and instead strives to maintain the
confidentiality of its proprietary know-how. The Company believes that the
patent positions of any medical device manufacturer are uncertain and involve
complex legal and factual questions for which important legal principles are
largely unresolved.
AIT owns several patents and Lancer owns a single patent. There can be
no assurance, however, that these patents will provide significant proprietary
protection or will be circumvented or invalidated.
New Product Development. The diagnostic test industry is characterized
by ongoing technological developments and changing customer requirements. As a
result, the Company's success and continued growth depend, in part, on
Biomerica's ability in a timely manner to develop and successfully introduce
into the marketplace, enhancements of existing products or
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new products that incorporate technological advances, meet customer requirements
and respond to products developed by Biomerica's competition. There can be no
assurance that Biomerica will be successful in developing products on a timely
basis or that such products will adequately address that changing needs of the
marketplace.
Government Regulation. Biomerica's immunodiagnostic products are
regulated in the United States as medical devices primarily by the FDA and as
such, require regulatory clearance or approval prior to commercialization.
Pursuant to the Federal Food, Drug and Cosmetic Act, and the regulations
promulgated thereunder, the FDA regulates, among other things, the clinical
testing, manufacture, labeling, promotion, distribution, sale and use of medical
devices in the United States. Failure of Biomerica to comply with applicable
regulatory requirements can result in, among other things, warning letters,
fines, injunctions, civil penalties, recall or seizure of products, total or
partial suspension of production, the government's refusal to grant premarket
clearance or premarket approval of devices, withdrawal of marketing approvals,
and criminal prosecution.
Sales of medical devices outside the United States are subject to
foreign regulatory requirements that vary widely from country to country. The
time required to obtain registrations or approvals required by foreign countries
may be longer or shorter than that required for FDA clearance or approval, and
requirements for licensing may differ significantly from FDA requirements. There
can be no assurance that Biomerica will be able to obtain regulatory clearances
for its current or any future products in the United States or in foreign
markets.
Lancer's products are also subject to regulation by the FDA under the
Medical Device Amendments of 1976 (the "Amendments"). Lancer has registered with
the FDA as required by the Amendments. There can be no assurance that Lancer
will be able to obtain regulatory clearances for its current or any future
products in the United States or in foreign markets.
Need to Retain and Attract Key Employees. The Company is highly
dependent upon the principal members of its management and scientific staff,
especially Joseph H. Irani and Dr. Robert Orlando, the loss of whose services
might impede the achievement of the Company's business objectives. Furthermore,
recruiting and retaining additional qualified scientific, manufacturing,
marketing and sales personnel also will be critical to the Company's success.
The Company faces competition for qualified individuals from numerous
manufacturers of medical products and other high technology products, as well as
universities and academic institutions.
Potential Adverse Impact of Reimbursement Policies. Political, economic
and regulatory influences are subjecting the health care industry in the United
States to fundamental change. Although Congress has failed to pass comprehensive
health care reform legislation to date, the Company anticipates that Congress,
state legislatures and the private sector will continue to review and assess
alternative benefits, controls on health care spending through limitations on
the growth of private health insurance premiums and Medicare and Medicaid
spending, the creation of large insurance purchasing groups, price controls on
pharmaceuticals and other fundamental changes to the health care delivery
system. Any such proposed or actual changes could cause any potential partners
of the Company to limit or eliminate spending on collaborative development
projects. Legislative debate is expected to continue in the future,
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market forces are expected to demand reduced costs and the Company cannot
predict what impact the adoption of any federal or state health care reform
measures or future private sector reforms may have on its business.
In both domestic and foreign markets, sales of the Company's products
will depend in part on the availability of reimbursement from third-party payors
such as government health administration authorities, private health insurers
and other organizations. Third-party payors are increasingly challenging the
price and cost effectiveness of medical products and services. Significant
uncertainty exists as to the reimbursement status of newly approved health care
products. There can be no assurance that the Company's products will be
considered cost effective or that adequate third-party reimbursement will be
available to enable the Company to maintain price levels sufficient to realize
an appropriate return on its investment in product development. Legislation and
regulations affecting the pricing of health care services may change, which
could affect the Company's products and could further limit reimbursement for
medical products and services.
Risk of Product Liability; Possible Unavailability of Insurance.
Testing, manufacturing and marketing of the Biomerica's products entail risk of
product liability. Biomerica currently has product liability insurance. There
can be no assurance, however, that Biomerica will be able to maintain such
insurance at a reasonable cost or in sufficient amounts to protect Biomerica
against losses due to product liability. An inability to maintain insurance at
an acceptable cost or to otherwise protect against potential product liability
could prevent or inhibit the commercialization of the Biomerica's products. In
addition, a product liability claim or recall could have a material adverse
effect on the business or financial condition of the Company.
Lancer is subject to the same risks of product liability. Lancer
currently has product liability insurance. Lancer also is subject to the risk of
loss of its product liability insurance and the consequent exposure to
liability.
Hazardous Materials. Biomerica's research and development involves the
controlled use of hazardous materials and chemicals. Although Biomerica believes
that its safety procedures for handling and disposing of such materials comply
with the standards prescribed by state and federal regulations, the risk of
accidental contamination or injury from these materials cannot be completely
eliminated. In the event of such an accident, the Company could be held liable
for any damages that result and any such liability could exceed the resources of
the Company. The Company may incur substantial costs to comply with
environmental regulations.
Volatility of Stock Price. The market price of the Company's Common
Stock, like that of the common stock of many other medical device and other high
technology companies, has been highly volatile. Factors such as delays in
obtaining FDA approval for new products, fluctuations in the Company's actual or
anticipated operating results, announcements of technological innovations or new
commercial products by the Company or its competitors, governmental regulation,
changes in the current structure of the health care financing and payment
systems in the United States, developments in or disputes regarding patent or
other proprietary rights, economic and other external factors and general market
conditions may have a significant effect on the market price of the Common
Stock.
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SELLING STOCKHOLDERS
The Selling Stockholders received their Shares pursuant to a private
placement (the "Private Placement"). In connection with the Private Placement,
the Company agreed to file a registration statement with the Commission covering
the Shares issued to each Selling Stockholder and to indemnify each Selling
Stockholder against claims made against them arising out of, among other things,
statements made in such registration statement. In addition, the Company agreed
to cause this registration statement to remain effective for a period of at
least 36 months or until all of the Shares are sold or until the Selling
Stockholders may sell under Rule 144, or other exemption acceptable to the
Company, all of the Shares then held by the Selling Stockholders in any three
month period.
The following table provides certain information with respect to the
Shares held and to be offered under this Prospectus from time to time by each
Selling Stockholder. Because the Selling Stockholders may sell any amount of
their Shares pursuant to this Prospectus, and this offering is not being
underwritten on a firm commitment basis, no estimate can be given as to the
number and percentage of shares of Common Stock that will be held by each
Selling Stockholder upon termination of this offering. See "Plan of
Distribution."
TOTAL SHARES OF
COMPANY STOCK NUMBER OF
BENEFICIALLY SHARES
NAME OWNED OFFERED
The Aries Fund, A Cayman
Island Trust(1) ............................ 111,111 111,111
the Aries Domestic Fund, L.P(1) ............ 222,222 222,222
Total ...................................... 333,333 333,333
(1) The investment manager of The Aries Fund, A Cayman Island Trust, is
Paramount Capital Asset Management, Inc., a subchapter S corporation ("Paramount
Capital"). The general partner of The Aries Domestic Fund, L.P. is Paramount
Capital. The sole stockholder of Paramount Capital is Lindsay A. Rosenwald, M.D.
The Company is unaware of any material relationship between any of the
Selling Stockholders and the Company in the past three years.
PLAN OF DISTRIBUTION
The Shares may be sold from time to time by the Selling Stockholders or
by donees or transferees, directly or through underwriters, dealers or agents,
who may receive compensation in the form of underwriting discounts, concessions
or commissions from the Selling Stockholders or the purchasers of Shares for
whom they may act as agent. The Shares or any part of the Shares may be sold in
amounts and on terms to be determined at the time of sale, including, without
limitation, block trades, in the over-the-counter market, or otherwise, at
negotiated prices or at or relating to quoted market prices then prevailing. The
Selling Stockholders
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reserve the sole right to accept and, together with any agent of the Selling
Stockholders, to reject in whole or in part any proposed purchase of the Shares.
The Selling Stockholders will pay any sales commissions or other seller's
compensation applicable to such transactions.
To the extent required, the amount of the Shares to be sold, purchase
prices, public offering prices, the names of any agents, dealers or
underwriters, and any applicable commissions or discounts with respect to a
particular offer will be set forth by the Company in a Prospectus Supplement
accompanying this Prospectus or, if appropriate, a post-effective amendment to
the Registration Statement. The Selling Stockholders and agents who execute
orders on its behalf may be deemed to be underwriters as that term is defined in
Section 2(11) of the Securities Act and a portion of any proceeds of sales and
discounts, commissions or other seller's compensation may be deemed to be
underwriting compensation for purposes of the Securities Act.
Offers or sales of the Shares have not been registered or qualified
under the laws of any country, other than the United States. To comply with
certain states' securities laws, if applicable, the Shares will be offered or
sold in such jurisdictions only through registered or licensed brokers or
dealers. In addition, in certain states the Shares may not be offered or sold
unless they have been registered or qualified for sale in such states or an
exemption from registration or qualification is available and is complied with.
Under applicable rules and regulations under the Exchange Act any
person engaged in a distribution of the Shares may not simultaneously engage in
market-making activities with respect to such Shares for a period of five
business days prior to the commencement of such distribution. In addition to and
without limiting the foregoing, the Selling Stockholders and any other person
participating in a distribution will be subject to applicable provisions of the
Exchange Act and the rules and regulations thereunder, including without
limitation, Regulation M, which may limit the timing of purchases and sales of
any of the Shares by the Selling Stockholders or any other persons. All of the
foregoing may affect the marketability of the Shares and the brokers' and
dealers' ability to engage in market-making activities with respect to the
Shares.
Pursuant to an agreement with the Selling Stockholders, the Company
will pay substantially all of the expenses incident to the registration of the
Shares, estimated to be approximately $45,000. Under an agreement entered into
with the Company, the Selling Stockholders, control persons of the Selling
Stockholders, and any underwriter they may utilize will be indemnified by the
Company against certain civil liabilities, including liabilitiesForm S-3 filed under the Securities Act. EXPERTS
The consolidated financial statements of Biomerica, Inc.As permitted by the SEC’s rules, this prospectus and subsidiaries, as of
May 31, 1996, and for eachany accompanying prospectus supplement, which form a part of the years inregistration statement, do not contain all the two-year period ended May 31,
1996, have been incorporated by reference herein andinformation that is included in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus or any prospectus supplement concerning legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement in reliance uponor otherwise filed with the report of Corbin & Wertz, independent certified
accountants, incorporated herein by reference, and upon the authority of such
firm as experts in accounting and auditing.
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LEGAL MATTERS
The validitySEC for a more complete understanding of the Shares offered by this Prospectus will be passed upon for
the Company by Solomon Ward Seidenwurm & Smith, LLP, San Diego, California.
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NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS IN CONNECTION WITH
THE OFFERING HEREIN CONTAINED AND, IF GIVEN OR MADE, UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR THE SELLING STOCKHOLDERS. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, THE
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE AN OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE AN
IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN THIS
PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
TABLE OF CONTENTS
Page
Available Information ....................... 2
Incorporation of Certain Documents by
Reference ................................ 2
The Company ................................. 2
Risk Factors ................................ 5
Selling Stockholders ........................ 8
Plan of Distribution ........................ 8
Experts ..................................... 9
Legal Matters ............................... 10
January ____, 1997
333,333 SHARES
document or matter.
11
$45,000,000
BIOMERICA, INC.
COMMON STOCK
Common Stock
PROSPECTUS
11
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, 2017
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
DISTRIBUTION.
The estimated expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, which
shall be paid for by the Selling Stockholders, in connection with theare estimated below:
SEC registration fee | $ | 5,216 |
|
Legal fees and expenses | $ | 10,000 |
|
Accounting fees and expenses | $ | 5,000 |
|
Miscellaneous | $ | 1,784 |
|
Total expenses* | $ | 22,000 |
|
* Does not include expense of preparing prospectus supplements and other expenses relating to specific offerings of the Shares are as follows:
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Article IX of theOFFICERS.
Our First Amended and Restated Certificate of Incorporation providesincludes a provision that directorseliminates the personal liability of the Registrant shall not be liable to the Registrant or its stockholdersour directors for monetary damages for breach of their conductfiduciary duty as directors to the full extent permitted by
the Delaware General Corporation Law ("Delaware Law") as it existed at the time
the Certificate of Incorporation was adopted, and as it may thereafter be
amended. Any amendment to or repeal of Article IX shall apply only to acts or
omissions of directors occurring after such amendment or repeal.
Article IX of the Certificate of Incorporation also provides that the
Registrant shall indemnify and hold harmless its directors and officersa director to the fullest extent permitted under Delaware law. The effect of this provision of our First Amended and Restated Certificate of Incorporation, as permitted by Section 145 of the Delaware General Corporation Law, is to eliminate our rights and those of our stockholders (through stockholders’ derivative suits on behalf of our Company) to recover damages against all expense, liability and
lossa director or officer for breach of the fiduciary duties as a director or officer (including attorney's fees, judgements, fines, ERISA excise taxesbreaches resulting from negligent or penalties and amounts paid in settlement) incurred in connection with their
service or statusgrossly negligent behavior), except under certain situations defined by statute.
In addition, as permitted by Section 145, our Bylaws provide that we are required to indemnify our directors and officers and such indemnification shall
continue as to a person who has ceased to a director, officer, employee or agent
and shall inurepersons serving in these capacities in other business enterprises (including, for example, our subsidiaries) at our request, to the benefit of his or her heirs, executors and
administrators; provided however, that the Registrant shall indemnify any such
person seeking indemnificationfullest extent permitted by Delaware law, including in connection with a proceeding initiated by such
person only if such proceeding was authorized by the Board of Directors. Such
indemnification also extends to liabilities arising from actions taken by
directors or officers when serving at the request of the Registrant as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, employee benefit plan or other enterprise.
Section 145 of Delaware Law, as currentlythose circumstances in effect, sets forth the
indemnification rights of directors and officers of Delaware corporations. Under
such provision, a director or officer of a corporation (i) shall be indemnified
by the corporation for all expenses of litigation or other legal proceedings
when he or she is successful on the merits or otherwise, (ii) may be indemnified
by the corporation for the expenses, judgments, fines and amounts paid in
settlement
II-1
15
of such litigation (other than a derivative suit), even if he or she is not
successful on the merits, if he or she acted in good faith and in a manner he or
she reasonably believed to be in or not opposed to the best interests of the
corporation (and, in the case of a criminal proceeding, had no reason to believe
his or her conduct was unlawful), and (iii) may be indemnified by the
corporation for the expenses of a derivative suit (a suit by a stockholder
alleging a breach by a director or an officer of a duty owed to the
corporation), even if he or she is not successful on the merits, if he or she
acted in good faith and in a manner he or she reasonably believed to be in or
not opposed to the best interests of the corporation, provided that no such
indemnification may be made in accordance with this clause (iii) if the director
or officer is adjudged liable to the corporation, unless a court determines
that, despite such adjudication but in view of all the circumstances, he or she
is fairly and reasonably entitled to indemnification of such expenses. The
indemnification described in clauses (ii) and (iii) above shall be made only
upon a determination by (A) a majority of a quorum of disinterested directors,
(B) independent legal counsel in a written opinion, or (C) the stockholders,
that indemnification is proper because the applicable standard of conduct has
been met.
The effect of the indemnification provisions contained in the Articles
is to require the Registrant to indemnify its directors and officers under
circumstances where suchwhich indemnification would otherwise be discretionarydiscretionary. Our Bylaws also provide that we may, in our discretion, indemnify our employees and to
extend toagents in circumstances where indemnification is not required by law. The rights conferred in the Registrant's directors and officers the benefits of Delaware Law
dealing with director and officer indemnification, as well as any future changes
that might occur under Delaware Law in this area.
The Articles state that the indemnification rights granted thereunderBylaws are not exclusive, and we are authorized to enter into indemnification agreements with our directors, executive officers and employees. We may not retroactively amend our bylaw provisions in a way that reduces the protections of any other indemnification rights to which the director or
officer may otherwise be entitled. As permitted by Section 145(g) of Delaware
Law, the Articles also authorize the Registrant to purchase directors, officers and officers insurance for theemployees who benefit of its directors and officers, irrespective
of whether the Registrant has the power to indemnify such persons under Delaware
Law. The Registrant currently does not maintain such insurance as allowed byfrom these provisions.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable.
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ITEM 16. EXHIBITS
See Exhibit Index.
EXHIBITS.
Exhibit No. | Description | |
1.1 | Form of Underwriting Agreement* | |
3.1 | First Amended and Restated Certificate of Incorporation of the Company (incorporated herein by reference to Exhibit 3.8 to the Company’s Annual Report on Form 10-KSB, filed September 13, 2000). | |
3.2 | Bylaws of the Company (incorporated herein by reference to Exhibit 3.2 to Amendment No. 1 to the Company’s Registration Statement on Form S-1/A, filed July 14, 1983.) | |
4.1 | Form of Common Stock Certificate (incorporated herein by reference to Exhibit 4.1 of the Company’s Registration Statement on Form SB-2, filed September 16, 1999). | |
5.1 | Opinion of Legal Counsel± | |
23.1 | Consent of PKF, LLP± | |
23.2 | Consent of Legal Counsel (included in Exhibit 5.1)± | |
24.1 | Power of Attorney (included on the signature page of this registration statement)± |
± Filed herewith.
* To be filed by amendment or as an exhibit to a document to be incorporated by reference herein in connection with an offering of the offered securities, if applicable.
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ITEM 17. UNDERTAKINGS
(a) UNDERTAKINGS.
The undersigned Registrantregistrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act");
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statementregistration statement (or the most recent post-effective amendment thereof) that,which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Statement;Fee” table in the effective registration statement; and
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16
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statementregistration statement or any material change to such information in this Registration Statement;
PROVIDED, HOWEVER,registration statement;
provided, however, that subparagraphs (a)(1)paragraphs (i), (ii) and (a)(1)(ii)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in the periodic reports filed with or furnished to the Commission by the Registrantregistrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 as amended (the "Exchange Act"), that are incorporated by reference in this Registration Statement;
the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein,therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and
thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered thatwhich remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b) The(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
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(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant hereby furtherregistrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(6) That, for the purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant'sregistrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this Registration Statementthe registration statement shall be deemed to be a new registration statement relating to the securities offered herein,therein, and the offering of such Securitiessecurities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrantregistrant pursuant to the foregoing provisions, under Item 15 above, or otherwise, the Registrantregistrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrantregistrant of expenses incurred or paid by a director, officer or controlling person of the Registrantregistrant 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 Registrantregistrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. II-3
17
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant 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
Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newport Beach,Irvine, State of California, on January 17,
1997.
BIOMERICA, INC.
By: /s/ JOSEPH H. IRANI
-------------------------------------
Joseph H. Irani
Chief Executive and Financial Officer
POWER OF ATTORNEY
June 29, 2017.
BIOMERICA, INC. | ||
By: | /s/ Zackary Irani | |
Zackary Irani | ||
Chairman and Chief Executive Officer | ||
Each person whose signature appears below hereby authorizesconstitutes and appoints Joseph H.Zackary Irani and Janet Moore, and each of them as his or her true and lawful attorney-in-factattorneys-in-fact and agent, eachagents, with full powerspower of substitution and resubstitution, for him or her and full power to act without the other,in his or her name, place and stead, in any and all capacities, to sign on his behalf,
individually and in the capacities stated below, and to file any and all amendments including(including post-effective amendments,amendments) and supplements to this Registration Statementregistration statement (or any other registration statement for the same offering that is effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended) and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting tohereby ratifying and confirming all that each of said attorney-in-factattorneys-in-fact and agent full power and authority to perform any
other act on behalf of the undersigned requiredagents, or his or her substitute or substitutes, may do or cause to be done in or about the
premises.
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statementregistration statement has been signed by the following persons in the capacities indicatedand on January 17, 1997.
Signature Title
/s/ JOSEPH H. IRANI Chief Executive and Financial
- ---------------------------- Officer and Director (Principal Executive
Joseph H. Irani and Financial Officer)
/s/ DR. ROBERT ORLANDO Director
- ----------------------------
Dr. Robert Orlando
/s/ DR. P.B. KAPLAN
- ---------------------------- Director
Dr. P.B. Kaplan
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EXHIBIT INDEX
EXHIBIT
NUMBER
- -------
3.1 Certificate of Incorporation of Registrant filed with the Secretary of
State of Delaware on September 22, 1971 (incorporated by reference to
Exhibit 3.1 filed with Amendment No. 1 to Registration Statement on
Form S-1, Commission File No. 2-83308).
3.2 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of State of Delaware on September 22, 1971
(incorporated by reference to Exhibit 3.1 filed with Amendment No. 1 to
Registration Statement on Form S-1, Commission File No. 2-83308).
3.3 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of State of Delaware on February 6, 1978
(incorporated by reference to Exhibit 3.1 filed with Amendment No. 1 to
Registration Statement on Form S-1, Commission File No. 2-83308).
3.4 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of State of Delaware on January 19, 1987
(incorporated by reference to Exhibit 3.4 filed with the Form 8
Amendment to the Registrant's Annual Report on Form 10-K for the fiscal
year ended May 31, 1987).
3.5 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of State of Delaware on November 4, 1987
(incorporated by reference to Exhibit 3.5 filed with the Registrant's
Annual Report on Form 10-K for the fiscal year ended May 31, 1991).
3.6 Certificate of Amendment to Certificate of Incorporation of Registrant
filed with the Secretary of State of Delaware on December 20, 1994
(incorporated by reference to Exhibit 3.7 filed with the Registrant's
Annual Report on Form 10-KSB for the fiscal year ended May 31, 1995).
3.6 Bylaws of Registrant (incorporated by reference to Exhibit 3.2 filed
with Amendment No. 1 to Registration Statement on Form S-1, Commission
File No. 2-83308).
5.1 Opinion of Solomon Ward Seidenwurm & Smith, LLP.
10.1 Office lease dated June 1, 1988 between Registrant and Redington
Company covering Registrant's lease of premises at 1531/1535 Monrovia
Avenue, Newport Beach, California (incorporated by reference to Exhibit
10.1 filed with the Registrant's Annual Report on Form 10-K for the
fiscal year ended May 31, 1989).
dates indicated.
Name | Title | Date | ||
/s/ Zackary Irani | Chairman and Chief Executive Officer | June 29, 2017 | ||
Zackary Irani | (Principal Executive Officer) | |||
/s/ Janet Moore | Chief Financial Officer, Treasurer & Secretary | June 29, 2017 | ||
Janet Moore | (Principal Financial and Accounting Officer) | |||
/s/ Allen Barbieri | Director | June 29, 2017 | ||
Allen Barbieri | ||||
/s/ Francis Cano, Ph.D | Director | June 29, 2017 | ||
Francis Cano, Ph.D | ||||
/s/ Jane Emerson, M.D., Ph.D. | Director | June 29, 2017 | ||
Jane Emerson, M.D., Ph.D. | ||||
/s/ Mark Sirgo, Pharm.D | Director | June 29, 2017 | ||
Mark Sirgo, Pharm.D |
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10.2 Contract for Employment of Joseph H. Irani dated June 1, 1986
(incorporated by reference to Exhibit 10.2 filed with Registrant's
Annual Report on Form 10-K for the fiscal year ended May 31, 1986).
10.3 Lancer purchase agreement and warrants (incorporated by reference to
Exhibit 10.10 filed with Registrant's Annual Report on Form 10-K for
the fiscal year ended May 31, 1989).
10.4 1991 Stock Option and Restricted Stock Plan of Registrant (incorporated
by reference to Exhibit 4.1 to Registration Statement on Form S-8,
Commission File No. 33-47054, filed with the Securities and Exchange
Commission on April 6, 1992).
10.5 1995 Stock Option and Restricted Stock Plan of Registrant (incorporated
by reference to Exhibit 4.1 to Registration Statement on Form S-8,
Commission File No. 333-00159, filed with the Securities and Exchange
Commission on January 11, 1996).
23.1 Consent of Corbin & Wertz.
23.2 Consent of Solomon Ward Seidenwurm & Smith (included in Exhibit 5.1).
24 Power of Attorney (included on signature page to this Registration
Statement).
27 Financial Data Schedule (electronically filed with the Securities and
Exchange Commission only and incorporated herein by reference to
Exhibit 27 to the Company's Form 10-QSB for the quarter ended November
30, 1996).
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