As
filed with the Securities and Exchange Commission on August 25,
2005
Registration
No. 333-120741
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
S-3/A5
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
BOVIE
MEDICAL CORPORATION
(Exact
name of Registrant as specified in its charter)
______________________________
|
Delaware |
11-2644611 |
|
(State
or other jurisdiction of |
(I.R.S.
Employer |
|
Incorporation
or organization) |
Identification
No.) |
734
Walt Whitman Road
Melville,
New York 11747
(631)
421-5452
(Address,
including zip code, and telephone number, including area code, of Registrant’s
principal executive offices)
______________________________
ANDREW
MAKRIDES
President,
Chief Executive Officer
734
Walt Whitman Road
Melville,
New York 11747
(631)
421-5452
______________________________
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copy
to:
ALFRED
V. GRECO, ESQ.
Sierchio
Greco & Greco LLP
720
Fifth Avenue, Suite 1301
New
York, New York 10019
(212)
246-3030
KRAMER
LEVIN NEFTALIS & FRANKEL LLP
1177
Avenue of the Americas
New
York, New York 10036
(212)
715-9100
______________________________
Approximate
date of commencement of proposed sale to the public:
As soon
as practicable 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, check
the following box:
If this
Form is filed to a 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
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, check
the following box.
|
CALCULATION
OF REGISTRATION FEE |
| |
|
Proposed
Maximum |
Proposed
Maximum |
|
|
Title
of Each Class of |
Amount
to |
Offering
Price Per |
Aggregate
Offering |
Amount
of |
|
Securities
to be Registered |
Registered |
Share
(1) |
Price
(1) |
Registration
Fee |
| |
|
|
|
|
| |
|
|
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Common
Stock ($0.001 par value |
3,000,000 |
$
2.50 |
$7,500,000 |
$950.25 |
|
(1) |
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rules 457 (c) and 457 (g) of the Securities Act of 1933, and based on the
average of the high and low sales prices of the common stock, as reported
on the American Stock Exchange on November 19,
2004. |
The
Registrant hereby amends this registration statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to Section 8(a), may
determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SELLING
STOCKHOLDERS 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 IS NOT SOLICITING OFFERS TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
Subject
to Completion, DatedAugust 25, 2005
PRELIMINARY
PROSPECTUS
BOVIE
MEDICAL CORPORATION
3,000,000
Shares of Common Stock of Bovie Corporation
In
August, 2004, ACMI Corporation (“ACMI”), a major shareholder of Bovie Medical
Corporation (“Bovie”) privately sold a total of 3,000,000 shares of common stock
of Bovie Medical Corporation to a limited number of sophisticated accredited
purchasers. This prospectus relates to the public offering and sale, from time
to time, of a total of 3,000,000 shares of common stock by the purchasers from
ACMI that are listed in this prospectus as selling stockholders.
Our
common stock is listed on the American Stock Exchange under the symbol “BVX.”
The last reported sale price of our common stock onAugust 19, 2005 was $2.16 per
share.
Investing
in our common stock involves risks that are described in the “Risk Factors”
section of this Prospectus which begins on page 5.
We will
not receive any of the proceeds from the sale of our common stock by the selling
stockholders. The shares of common stock may be offered by the selling
stockholders in negotiated transactions, at either prevailing market prices or
negotiated prices. Each selling stockholder in its or his discretion may also
offer the shares of common stock from time to time in ordinary brokerage
transactions on the American Stock Exchange or otherwise. See our discussion in
the Plan of Distribution section of this Prospectus.
The
selling stockholder and any brokers executing selling orders on behalf of the
selling stockholder may be deemed to be "underwriters" within the meaning of the
Securities Act of 1933. Commissions received by a broker executing selling
orders may be deemed to be underwriting commissions under the Securities
Act.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
Bovie
Medical Corporation
734 Walt
Whitman Road
Melville,
New York 11747
(631)
421-5452
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This
summary highlights certain selected information contained elsewhere in this
prospectus. You should read the entire prospectus and the documents incorporated
by reference in this prospectus carefully before making an investment
decision.
Bovie
Medical Corporation (“our Company” or “Bovie”) was incorporated in 1982, under
the laws of the State of Delaware and has its principal executive offices at 734
Walt Whitman Road, Melville, New York 11747.
Bovie is
actively engaged in the business of manufacturing and marketing medical devices
and developing related technologies. Aaron Medical Industries (“Aaron”), a 100%
owned subsidiary based in St. Petersburg, Florida is engaged in marketing our
Company’s medical devices. Previously our largest product line was battery
operated cauteries. We have now shifted our focus to the manufacture and
marketing of electrosurgical generators and electrosurgical disposables. This
new focus on high frequency electrosurgical generators resulted in our Aaron 800
and Aaron 900 high frequency desiccators and Aaron 950, the first high frequency
desiccator with cut capacity. We then developed the Aaron 1250 and Aaron 2250
which were designed for today’s rapidly expanding surgi-center market.
Additionally, our new 200-watt electrosurgical unit and our new 300-watt
electrosurgical unit which are marketed under the Bovie name, are presently used
in hospitals worldwide. Presently the standard being used in hospitals is the
300-watt electrosurgical generator.
We also
manufacture a variety of specialty lighting instruments for use in
ophthalmology, general surgery, hip replacement surgery, and for the placement
of endotracheal tubes.
We
manufacture and market our products both under private label and the Bovie/Aaron
label to distributors worldwide. Additionally, we have original equipment
manufacturing (OEM) agreements with other medical device manufacturers under
which we develop and manufacture products pursuant to the specifications of our
OEM customers. These OEM arrangements combined with private label and the
Bovie/Aaron label have allowed our Company to gain greater market share for the
distribution of its products and an increase in its revenues.
You
should carefully consider the following risks and other information included or
incorporated by reference in this prospectus before deciding to purchase any
shares of common stock in this offering. The risks described in this section and
in information included or incorporated by reference in this prospectus could
cause our actual results to differ materially from those
anticipated.
Risks
Relating to Our Business
We
may not successfully make or integrate acquisitions or enter into strategic
alliances.
As
part of our business strategy, we also intend to pursue selected acquisitions of
certain businesses or technologies for the opportunity to grow sales in our
market. Our medical and electrosurgical devices compete with other medical and
electrosurgical devices and we cannot assure you that we will be able to effect
strategic alliances, partnerships or acquisitions on commercially reasonable
terms or at all. Even if we enter into these transactions, we may
experience:
| · |
delays
in realizing the benefits we anticipate or we may not realize the benefits
we anticipate at all; |
| · |
difficulties
in integrating any acquired businesses and products into our existing
business; |
| · |
loss
or attrition of key personnel from acquired
businesses; |
| · |
difficulties
or delays in obtaining regulatory
approvals; |
| · |
unforeseen
operating difficulties that require significant financial and managerial
resources that would otherwise be available for the development or
expansion of our existing operations. |
Consummating
these transactions could also result in the incurrence of additional debt and
related interest expense, as well as unforeseen contingent liabilities, all of
which could have a material adverse effect on our business, financial condition
and results of operations. We may also issue additional equity in connection
with these transactions, which would dilute the percentage ownership of our
existing shareholders.
We
distribute a significant amount of our products in Europe and to a lesser
degree, elsewhere outside of the United States, which subjects us to additional
business risks that may cause our profitability to
decline.
We
presently have international distributors (most of which with domestic offices
in the United States) that distribute our products to Europe, Asia, Russia,
South America, Canada, and Australia. Presently our distribution in Europe
substantially exceeds all other countries. We intend to continue to pursue
growth opportunities in sales internationally, which could expose us to greater
risks associated with international sales and operations,
including:
| · |
unexpected
changes in foreign regulatory requirements in Europe, Asia and South
America can negatively affect our distribution and marketing procedures
and thus our profits; |
| · |
fluctuations
in foreign currency exchange rates can affect us negatively as the dollar
increases in value against the Euro, peso or
yen. |
| · |
political
and economic instability in South America may delay or disrupt
distribution of our products; |
| · |
the
adoption of restrictive trade protection measures and import or export
licensing requirements in the future in Asia may raise our costs of
production there and negatively impact our future
sales; |
| · |
potentially
negative consequences from changes in tax laws in any of the countries in
which we have sales may adversely affect our business;
|
Our
international distributors usually have separate offices in the foreign country
in which they sell or have individual representatives to distribute their
products in the foreign countries. Should adverse economic or political
conditions develop in a specific foreign country or geographic area, and
adversely affect their sales, then their future orders for our products will
likely be reduced.
International
sales aggregated approximately $2.4M in fiscal 2004, of which 50% was from
Europe, 14% from Asia and 11% from South America. Our sales in Europe are
perceived by us to be least likely affected by the foregoing factors and sales
in South America will be most likely affected by the factors set forth
above.
Most
countries have their own version of our Food and Drug Administration (“FDA”) and
we must satisfy their current regulations (and further satisfy any future
changes in requirements) in order to sell our products in any particular
country. Each individual country has differing standards, some of which are more
stringent than our FDA in certain aspects - i.e. Japan. Without such compliance
we will be unable to offer our products in that particular country. If a country
should tax our group of products (to protect their own manufacturers), such tax
will increase our costs of doing business there so as to diminish or effectively
destroy our competitiveness. In addition, a number of countries in South America
have experienced fiscal crisis in the last few years. In Brazil, over the last
several years, the "real" has diminished in value to the extent that the real is
currently worth 25% of what it was worth several years ago. The direct result of
this has increased the cost of our product four-fold for Brazilians. The same
occurred in Argentina where due to its financial crisis, customers there have
sharply reduced orders for our products. Historically there are a greater number
of changes in governments of Latin American countries. We believe Latin America
to be the most politically unstable region in which we do business.
Any of
these factors may, individually or as a group, have a material adverse effect on
our business and results of operations.
As we
expand our existing international operations we may encounter additional risks.
For example, as we focus on building our international sales and distribution
networks in new geographic regions, we must continue to develop relationships
with qualified local distributors and trading companies. If we are not
successful in developing these relationships, we may not be able to grow sales
in these geographic regions. These or other similar risks could adversely affect
our revenue and profitability.
We
do a substantial amount of business with certain original equipment
manufacturers (“OEM”) which as a group have produced substantial revenues for
our Company. One OEM customer, Arthrex, Inc. produced revenues for us in excess
of approximately $6,000,000 or approximately 30% of total sales in fiscal 2004.
Loss of business from such customer will likely adversely affect our
business.
As part
of our business and at the request of certain original equipment manufacturers
(“OEM Customers”) we develop and supply medical products (“OEM Products”)
pursuant to their specifications. Although our OEM Customers usually pay our
expenses for development of these products, our agreement with them requires
that they own the technology and we may not generally compete with the OEM
technology in the particular OEM Customers’ markets. Our OEM Customer agreements
generally provide that the OEM Customers are not obligated to purchase any of
the OEM Products developed by us, but any and all purchases will be pursuant to
the agreed pricing formulation for the term of the agreement. The agreements
with our OEM Customers also generally provide, among other things, for product
warranties, insurance, termination and confidentiality. In the last two (2)
years we have sustained a substantial increase in revenue from OEM Customers as
a group. In our fiscal year ending December 31, 2004, OEM sales totaled
approximately $8,000,000 or 40% of our total sales. The purchase of OEM Products
by Arthrex, Inc., our major OEM Customer, generated approximately $6,000,000 in
sales (approximately 30% of our total revenue) in fiscal 2004. Should Arthrex
determine to cease or substantially reduce placement of orders for the OEM
Products from us, our business will be adversely affected.
If
we do not introduce new commercially successful products in a timely manner, our
products may become obsolete over time, customers may not buy our products and
our revenue and profitability may decline.
Demand
for our products may change in ways we may not anticipate because
of:
| · |
evolving
customer needs; |
| · |
the
introduction of competitive new products and
technologies; |
| · |
evolving
surgical practices; and |
| · |
changing
industry standards. |
Without
the timely introduction of new commercially successful products and
improvements, our products may become obsolete over time, in which case our
sales and operating results would suffer. The success of our new product
offerings will depend on several factors, including our ability to:
| · |
properly
identify and anticipate customer needs; |
| · |
commercialize
new products in a cost-effective and timely
manner; |
| · |
manufacture
and deliver products in sufficient amounts on
time; |
| · |
obtain
regulatory approval for such new products; |
| · |
differentiate
our product offerings from competitors'
offerings; |
| · |
achieve
positive clinical outcomes; |
| · |
satisfy
the increased demands by health care payors, providers and patients for
lower-cost procedures; |
| · |
innovate
and develop new materials, product designs and surgical techniques;
and |
| · |
provide
adequate medical and/or end-user education relating to new products and
where necessary or appropriate attract key surgeons to advocate these new
products. |
Moreover,
improvements or innovations generally will require a substantial investment in
research and development before we can determine the commercial viability of
these innovations and we may not have the financial resources necessary to fund
these changes or improvements. In addition, even if we are able to successfully
develop enhancements or new generations of our products, these enhancements or
new generations of products may not produce revenue in excess of the costs of
development and they may be quickly rendered obsolete by changing customer
preferences or the introduction by our competitors of products containing new
technologies or features.
We
rely on certain suppliers and manufacturers for raw materials and other products
and are vulnerable to fluctuations in the availability and price of such
products and services.
We
purchase certain raw materials and other products from third-party suppliers and
vendors, sometimes from limited sources. For example, we purchase some of our
raw materials and other products from a sole source. Our suppliers and vendors
may not provide the raw materials or other products needed by us in the
quantities requested, in a timely manner, or at a price we are willing to pay.
In the event any of our third-party suppliers or vendors were to become unable
or unwilling to continue to provide important raw materials and third-party
products in the required volumes and quality levels or in a timely manner, we
would be required to identify and obtain acceptable replacement supply sources.
We may not be able to obtain alternative suppliers and vendors on a timely
basis, which could result in lost sales because of our inability to manufacture
products containing such raw materials or deliver products we sell from certain
suppliers.
In
addition, we also rely on certain manufacturers for some of our products. For
example, we have historically outsourced raw materials and semi-finished goods
to third parties and partly to sole sources. If we were unable to renew our
third-party manufacturing agreements, or if the suppliers were to cease
supplying any of these products for us for any reason, we may not be able to
find alternative manufacturers on terms favorable to us, in a timely manner, or
at all. If any of these events should occur, our business, financial condition
and results of operations could be materially adversely affected.
We
face intense competition, and our failure to compete effectively could have a
material adverse effect on our profitability and results of
operations.
We face
intense competition in the markets for our electrosurgical and other medical
products and these markets are subject to rapid and significant technological
change. We have numerous competitors in the United States and abroad, including,
among others, large companies such as Valley Lab Corp., ConMed and Xomed. Many
of our competitors have substantially more resources and a greater marketing
capacity and scope than we do. We may not be able to sustain our current levels
of profitability and growth as competitive pressures, including pricing pressure
from competitors, increase. In addition, if we are unable to develop and produce
or market our products to effectively compete against our competitors, our
operating results will materially suffer.
Certain
aspects of our operations may cause us to be subject to intellectual property
litigation and infringement claims, which could cause us to incur significant
expenses or prevent us from selling our products.
There is
a substantial amount of litigation over patent and other intellectual property
rights in the medical industry and in the surgical generator products and
related markets particularly. We manufacture and sell a number of products for
which we do not have patent protection. In such case, there is always a
possibility that we may infringe intellectual property rights of others of which
we are unaware. A successful claim of patent or other intellectual property
infringement or misappropriation against us could adversely affect our growth
and profitability, in some cases materially. We cannot assure you that our
products do not or will not infringe issued patents or other intellectual
property rights of third parties. If someone claims that our products infringe
their intellectual property rights, whether or not such claims are meritorious,
any resulting litigation could be costly and time consuming and would divert the
attention of management and personnel from other business issues. The complexity
of the technology involved and the uncertainty of intellectual property
litigation increase these risks. Claims of intellectual property infringement
also might require us to enter into costly royalty or license agreements (if
available on acceptable terms or at all). We also may be subject to significant
damages or an injunction preventing us from manufacturing, selling or delivering
our products or some aspect of our products. We may also need to redesign some
of our products or processes to avoid future infringement liability. Any of
these adverse consequences could have a material adverse effect on our business
and profitability.
We
could experience losses due to product liability claims or product recalls or
corrections.
We have
in the past been, and continue to be, subject to product liability claims. As
part of our risk management policy, we have obtained third-party product
liability insurance coverage. Product liability claims against us may exceed the
coverage limits of our insurance policies or cause us to record a self-insured
loss. A product liability claim in excess of applicable insurance could have a
material adverse effect on our business, financial condition and results of
operations. Even if any product liability loss is covered by an insurance
policy, these policies have substantial retentions or deductibles that provide
that we will not receive insurance proceeds until the losses incurred exceed the
amount of those retentions or deductibles. To the extent that any losses are
below these retentions or deductibles, we will be responsible for paying these
losses. The payment of retentions or deductibles for a significant amount of
claims could have a material adverse effect on our business, financial condition
and results of operations.
In
addition, we are subject to medical device reporting regulations that require us
to report to the FDA or similar governmental authorities in other countries if
our products cause or contribute to a death or serious injury or malfunction in
a way that would be reasonably likely to contribute to death or serious injury
if the malfunction were to recur. The FDA and similar governmental authorities
in other countries have the authority to require the recall of our products in
the event of material deficiencies or defects in design or manufacturing. A
government mandated or voluntary recall by us could occur as a result of
manufacturing errors or design defects, including defects in labeling. We have
undertaken voluntary recalls of our products in the past.
Any
product liability claim or recall would divert managerial and financial
resources and could harm our reputation with customers. We cannot assure you
that we will not have product liability claims or recalls in the future or that
such claims or recalls would not have a material adverse effect on our
business.
Our
industry is highly regulated by the U.S. Food and Drug Administration and other
state and federal agencies which have substantial authority to establish
criteria which must be complied with in order to continue in
operation
Our
products and operations are subject to extensive regulation in the United States
by the FDA and various other federal and state regulatory agencies, including
with respect to regulatory approval of our products and health care fraud and
abuse, such as anti-kickback and physician self-referral laws and regulations.
Additionally, in many foreign countries in which we market our products, we are
subject to similar regulations. Compliance with these regulations is expensive
and time-consuming. If we fail to comply, we may be subject to fines,
injunctions and penalties that could harm our business. Product sales,
introductions or modifications may be delayed or canceled as a result of U. S.
or foreign regulatory processes, which could cause our sales to decline. Failure
to obtain regulatory clearance or approvals of new products we develop, any
limitations imposed by regulatory agencies on new product use or the costs of
obtaining regulatory clearance or approvals could have a material adverse effect
on our business, financial condition and results of operations. In addition, if
we, our subcontractors or third-party manufacturers or suppliers of products
that we distribute fail to comply with applicable manufacturing regulations, our
business could be harmed.
In
addition, changes in existing regulatory requirements or adoption of new
requirements could hurt our business, financial condition and results of
operations.
If
we fail to attract, hire and retain qualified and key
personnel we
may not be able to design, develop, market or sell our products or successfully
manage our business.
Our
ability to attract new customers, retain existing customers and pursue our
strategic objectives depends on the continued services of our current
management, sales, product development and technical personnel and our ability
to identify, attract, train and retain similar personnel. Competition for
qualified and talented engineers and top management personnel is intense and we
may not be able to recruit and retain the personnel we need. The loss of anyone
of our management personnel, or our inability to identify, attract, retain and
integrate additional qualified management personnel, could make it difficult for
us to manage our business successfully and pursue our strategic
objectives.
Similarly,
competition for skilled sales, product development and technical personnel is
intense and we may not be able to recruit and retain the personnel we need. The
loss of services of a number of key sales, product development and technical
personnel, or our inability to hire new personnel with the requisite skills,
could restrict our ability to develop new products or enhance existing products
in a timely manner, sell products to our customers or manage our business
effectively.
We may
not be able to hire or retain qualified personnel if we are unable to offer
competitive salaries and benefits. If our stock does not perform well, we may
have to increase our salaries and benefits, which would increase our expenses
and may reduce our profitability.
Due
to the nature of our products and their use by professionals, we are from time
to time subject to litigation from persons who sustain injury during medical
procedures in hospitals, physician’s offices or in clinics and defending such
litigations is expensive, disruptive, time consuming and could adversely affect
our business.
The
nature of our business is to develop, manufacture and sell medical devices to be
used by professionals for medical or surgical procedures in hospitals and
clinics. In instances, due to neglect or otherwise, a patient may be harmed
during a procedure. This often results in litigation against the hospital or
clinic at which the procedure took place, the professional performing the
procedure and sometimes, the manufacturer of the device used during the
procedure, which allegedly may have contributed to the injury.
Although
we carry liability insurance that we deem to be sufficient to protect our
Company in these instances, the experience of litigating these matters requires
our attention and participation to the extent necessary as a party to the
litigation. This can be disruptive, expensive and time consuming to an extent
that it may adversely affect our business.
We
may engage in acquisitions that could dilute stockholders' interests, divert
management attention or cause integration problems.
As part
of our business strategy, we have in the past acquired, and may in the future
acquire, businesses or intellectual property that we feel could complement our
business, enhance our technical capabilities or increase our intellectual
property portfolio. If we consummate acquisitions through an exchange of our
securities, our stockholders could suffer significant dilution. Acquisitions
could also create risks for us, including:
| · |
unanticipated
costs associated with the acquisitions; |
| · |
use
of substantial portions of our available cash to consummate the
acquisitions; |
| · |
diversion
of management's attention from other business
concerns; |
| · |
difficulties
in assimilation of acquired personnel or operations;
and |
| · |
potential
intellectual property infringement claims related to newly acquired
product lines. |
Any
acquisitions, even if successfully completed, might not generate significant
additional revenue or provide any benefit to our business.
We
have in the past experienced significant changes in our business and our failure
to manage the complexities associated with the changing economic circumstances
and technology requirements could harm our business.
Any
future periods of rapid change may place significant strains on our managerial,
financial, engineering and other resources. Further economic weakness, in
combination with our complex technologies, may demand an unusually high level of
managerial effectiveness in anticipating, planning, coordinating and meeting our
operational needs as well as the needs of our affiliates. Management’s inability
to meet such demands could adversely affect our business
operations.
Our
relationship with certain original equipment manufacturer customers may
interfere with our ability to enter into development and licensing relationships
with our customers’ competitors.
Our OEM
Manufacturers generally require that we not compete with them or develop or
supply competing OEM Products to competitors of our OEM customers. Accordingly,
we may be legally obliged to turn away business and/or a future licensing
relationship with a potential customer due to existing contractual obligations
to our OEM customers. Meeting such obligations to our existing customers could
have an adverse effect on our revenues and profits.
We
may elect to raise additional capital in the future which may result in
substantial dilution to our stockholders.
Should
any unanticipated circumstances arise which significantly increase our cash or
capital requirements we may elect to raise additional capital to have a supply
of cash for such events or future periods. Our plans to raise additional capital
may include possible debt or equity financing. We have taken measures to control
our costs and will continue to monitor these efforts. We cannot be certain that
additional financing will be available to us on favorable terms when required,
or at all. Changes in equity markets over the past two years have adversely
affected the ability of companies to raise equity financing and have adversely
affected the markets for financing for companies such as ours. Additional
financing may require us to issue additional shares of our common or preferred
stock such that our existing stockholders may experience substantial
dilution.
Our
quarterly revenues and operating results are varied, and if our future results
are below the expectations of public market analysts or investors, the price of
our common stock is likely to decline.
Our
revenues and operating results are likely to vary significantly from quarter to
quarter due to a number of factors, many of which are outside of our control and
any of which could cause the price of our common stock to decline.
These
factors include:
| · |
the
establishment or loss of licensing relationships; the timing of payments
under fixed and/or up-front license
agreement |
| · |
the
timing of our expenses including costs may be related to litigation,
acquisitions of technologies or businesses; |
| · |
the
timing of introductions of new products and product enhancements by us,
our licensees or their competitors; |
| · |
our
ability to develop and improve our
technologies; |
| · |
our
ability to attract, integrate and retain qualified personnel;
and |
| · |
seasonality
in the demand for our licensees' products. |
By
their holdings, our major stockholders have a degree of control over us, which
may lead to conflicts with other stockholders over corporate governance matters
and could also affect our stock price.
We have
had in the past and may have in the future stockholders who retain greater than
20% of our outstanding stock. Acting together, these stockholders would be able
to exercise significant influence over matters that our stockholders vote upon,
including the election of directors and mergers or other business combinations,
which could have the effect of delaying or preventing a third party from
acquiring control over or merging with us. Further, if any individuals in this
group elect to sell a significant portion or all of their holdings of our common
stock, the trading price of our common stock could experience volatility.
Our
manufacturing facilities are located in St. Petersburg, Florida and could be
affected due to multiple risks from fire, hurricanes and the
like.
Florida
has sustained four (4) major hurricanes during the past year, the last of which
occasioned damage to the roof of one of our buildings. We sustained flooding and
loss of furniture and equipment. The damage was not disruptive to operations and
although we carry casualty insurance and business interruption insurance, future
possible disruptions of operations due to hurricanes or fire could affect our
ability to meet our commitments to our customers and impair important business
relationships, the loss of which could adversely affect our operations and
profitability.
You
should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized anyone to provide you with different
information. If anyone provides you with different or inconsistent information,
you should not rely on it. The selling stockholder is not making an offer to
sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information appearing in this prospectus
is accurate only as of the date on the front cover of this prospectus. Our
business, financial condition, results of operations and prospects may have
changed since that date.
Bovie is
a registered trademark of Bovie Medical Corporation. This prospectus contains
product names, trade names and trademarks of Bovie and other
organizations.
The terms
"Bovie," "we," "us," "our," and the "company," as used in this prospectus, refer
to Bovie Medical Corporation and its consolidated subsidiaries.
This
prospectus includes forward-looking statements within the meaning of Section 27
A of the Securities Act of 1933, as amended, and Section 2IE of the Securities
Exchange Act of 1934, as amended. The forward-looking statements involve risks
and uncertainties. Forward-looking statements are identified by words such as
"anticipates", "believes", "expects", "intends", "may", "will" and other similar
expressions. However, these words are not the only way we identify forward
looking statements. In addition, any statements, which refer to expectations,
projections or other characterizations of future events or circumstances are
forward-looking statements. Actual results could differ materially from those
projected in the forward-looking statements as a result of a number of factors,
including those listed under "Risk Factors" and elsewhere in this prospectus and
those described in our other reports filed with the SEC. We caution you not to
place undue reliance on these forward-looking statements, which speak only as of
the date of this report, and we undertake no obligation to update these forward
-looking statements after the filing of this report. You are urged to review
carefully and consider our various disclosures in this report and in our other
reports filed with the SEC that attempt to advise you of the risks and factors
that may affect our business.
|
|
|
COMMON
STOCK OFFERED
BY
THE SELLING STOCKHOLDERS |
3,000,000
Shares |
|
USE
OF PROCEEDS |
We
will not receive any of the proceeds from the sale of common stock by the
selling stockholders. |
|
OUTSTANDING
SHARES AFTER OFFERING |
Since
the shares being offered by the selling stockholders are already
outstanding, our outstanding shares of common stock after the offering
will not change as a result of the offering by selling
stockholders. |
|
AMERICAN
STOCK EXCHANGE SYMBOL |
BVX |
|
RISK
FACTORS |
See
“Risk Factors” beginning on page ___ and other information in this
prospectus for a discussion of factors you should consider carefully
before investing in shares of our common
stock. |
Background
to Recent Developments
In 1998,
Maxxim Medical Corporation (“Maxxim”) a then publicly owned corporation,
acquired 3,000,000 shares of our common stock from us pursuant to a certain
agreement in exchange for assets and equipment, the ownership of the trade name
“Bovie” and other future business to be conducted between our corporations. As
part of the agreement, Maxxim was granted rights to demand that we register the
shares with the SEC. Maxxim later became a privately owned corporation, changed
its name to Medical Wind Down Holdings I, Inc. (“Holdings”) and with certain
affiliated debtors, filed a petition under Chapter 11 of Title 11 of the United
States Code with the U.S. Bankruptcy Court for the District of
Delaware.
At the
time of filing of the petition under Chapter 11, a dispute existed between
Holdings and ACMI Corporation, a non-affiliate of our Company and Maxxim. ACMI
allegedly purchased the Bovie common stock from Maxxim in February 2000.
However, during the ensuing years, Maxxim retained possession of the shares and
continued to claim ownership and the dispute continued. In May, 2004, as part of
a Settlement and Amended Plan of Reorganization which was adopted by the U.S.
Bankruptcy Court, ACMI Corporation was officially declared to be the legitimate
owner, free and clear of the 3,000,000 shares of Bovie common stock, together
with the demand registration rights for the shares.
Recent
Developments
In
September 2004, ACMI Corporation privately sold the 3,000,000 shares to a
limited number of sophisticated accredited investors who are identified in this
prospectus as “selling stockholders.” As part of the sale, ACMI Corporation
assigned the demand registration rights to the selling stockholders and ACMI
agreed to pay future registration expenses up to a maximum of $60,000 and if
such expenses exceed that amount, such additional expenses of registration of
the shares will be borne by the selling stockholders, pro-rata. Shortly after
completion of the sale by ACMI Corporation, the selling stockholders exercised
their registration rights and demanded that we file the registration statement
with the SEC covering the 3,000,000 shares of common stock and this prospectus
constitutes an important part of the registration statement. See “Selling
Stockholders” and “Plan of Distribution” for more information regarding the
selling stockholders and the sale of shares pursuant to this
prospectus.
We will
not receive any proceeds from the sale by the selling stockholders of the common
stock offered by this prospectus. The selling stockholder will receive all of
the net proceeds (net of any sales commissions). Our expenses are being paid by
ACMI and, if necessary, the selling stockholders, pro-rata.
We have
never paid cash dividends on our common stock. We currently intend to retain
earnings for use in our business and do not anticipate paying any cash dividend
on our common stock in the foreseeable future. Any future declaration and
payment of dividends on our common stock will be subject to the discretion of
our board of directors, will be subject to applicable law and will depend on our
results of operations, earnings, financial condition, contractual limitations,
cash requirements, future prospects and other factors deemed relevant by our
Board of Directors.
Our
authorized capital stock consists of 40,000,000 shares of common stock, $0.001
par value per share, and 10,000,000 shares of preferred stock, $0.001 par value
per share.
The
following is a summary of the material terms of our common stock and preferred
stock. Please see our certificate of incorporation for more detailed
information.
Common
Stock
The
holders of our common stock are entitled to one vote for each share held of
record on all matters submitted to a vote of stockholders. Holders of a majority
of the shares of common stock entitled to vote in any election of directors may
elect all of the directors standing for election. Subject to preferences
applicable to any outstanding preferred stock, holders of common stock are
entitled to receive ratably any dividends declared by the Board of Directors out
of funds which are legally available for distribution to stockholders. See
“Dividend Policy.” In the event of a liquidation, dissolution or winding up of
Bovie, holders of common stock are entitled to share ratably in the assets
remaining after payment of liabilities and the liquidation preferences of any
outstanding preferred stock. Holders of our common stock have no preemptive,
conversion or redemption rights.
Registration
Rights
Under our
agreement with the selling stockholders, we agreed to file with the Commission a
shelf registration statement covering the resale of shares of Bovie common stock
issued to the selling stockholders to be sold from time-to-time by the selling
stockholders. Other terms of our agreement with respect to the registration of
the shares are set forth under the caption “Plan of Distribution”
below.
Preferred
Stock
In
addition, pursuant to our Certificate of Incorporation, the Board has authority
to issue up to 10,000,000 shares of preferred stock and to fix the rights,
preferences, privileges and restrictions, including voting rights, of these
shares without any further vote or action by the stockholders. The rights of the
holders of the common stock will be subject to, and may be adversely affected
by, the rights of the holders of any preferred stock that may be issued in the
future. The issuance of preferred stock, while providing desirable flexibility
in connection with possible acquisitions and other corporate purposes, could
have the effect of making it more difficult for a third party to acquire a
majority of the outstanding voting stock of the company, thereby delaying,
deferring or preventing a change in control of the company. Furthermore, such
preferred stock may have other rights, including economic rights, senior to the
common stock, and as a result, the issuance of such preferred stock could have a
material adverse effect on the common stockholders including the market price of
the common stock.
These
problems could discourage potential acquisition proposals and could delay or
prevent a change in control of the company. Such provisions could diminish the
opportunities for a stockholder to participate in tender offers, including
tender offers at a price above the then current market price of the common
stock. Such provisions also may inhibit fluctuations in the market price of the
common stock that could result from takeover attempts.
As of the
date of this prospectus, there have not been issued any shares of preferred
stock nor is there any plan to do so as of this date.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock is Manhattan Transfer
Registrar Co., 57 Eastwood Road, Miller Place, New York 11764.
The
shares of common stock offered hereby were acquired by the selling stockholders
in connection with a private placement by ACMI Corporation, the former owner of
3,000,000 shares of Bovie common stock. The selling stockholders may each offer
and sell all of their shares, from time to time, pursuant to this
prospectus.
The
following table sets forth the number of shares owned by each selling
stockholder as of September 30, 2004, the amount offered and the percentage
owned by the selling stockholders after the offering, assuming the sale of all
shares offered by this prospectus. No estimate can be given as to the amount of
shares owned by each selling stockholder after completion of this offering
because each selling stockholder may offer and sell all, some or none of the
shares. The shares offered by this prospectus may be offered from time to time
by each selling stockholder named below:
|
Names
of Selling
Stockholders |
Number
of Shares
Owned
Prior to Offering |
Number
of Shares
Offered
Hereunder |
%
of Outstanding
Shares
Owned
After
Offering |
|
The
Frost National Bank FBO
Renaissance
US Growth
Investment
Trust PLC,
Trust
No. W00740100
Attn.:
Russell Cleveland3 |
1,000,000 |
1,000,000 |
0.0% |
| |
|
|
|
|
The
Frost National Bank
FBO,
Renaissance Capital
Growth
& Income Fund III,
Inc.,
Trust No. W00740000
Attn.:
Russell Cleveland3 |
300,000 |
300,000 |
0.0% |
| |
|
|
|
|
The
Frost National Bank
FBO,
BFS US Special
Opportunities
Trust PLC,
Trust
No. W00118000
Attn.:
Russell Cleveland3 |
1,000,000 |
1,000,000 |
0.0% |
| |
|
|
|
|
Jeffrey
R. Kowski |
30,000 |
30,000 |
0.0% |
| |
|
|
|
|
R&R
Opportunity Fund, LP4
Attn.:
John Bohrer3 |
60,000 |
60,000 |
0.0% |
| |
|
|
|
|
Michael
R. Snow |
100,000 |
50,000 |
0.72% |
| |
|
|
|
|
Cordillera
Fund, L.P.
Attn.: Stephen Carter and
James
P. Andrew3 |
100,000 |
100,000 |
0.0% |
| |
|
|
|
|
John
A. Selzer |
30,000 |
30,000 |
30,000 |
| |
|
|
|
|
MidSouth
Investor Fund LP4
Attn.:
L.O. Heidtke3 |
100,000 |
50,000 |
0.72% |
| |
|
|
|
|
Larry
Hopfenspirger |
143,300 |
30,000 |
1.03% |
| |
|
|
|
|
Kuekenhof
Equity Fund, LP4 |
100,000 |
100,000 |
0.0% |
|
Attn.:
Michael C. James3 |
|
|
|
| |
|
|
|
|
Infinity
Capital Partners, LP |
100,000 |
100,000 |
0.0% |
|
Attn.:
Michael Feinsod3 |
|
|
|
| |
|
|
|
|
MFN,
LLC4 |
50,000 |
50,000 |
0.0% |
|
Attn.:
Anthony Ottimo3 |
|
|
|
| |
|
|
|
|
Richard
Molinsky |
50,000 |
50,000 |
0.0% |
| |
|
|
|
|
Robert
A. Melnick |
20,000 |
20,000 |
0.0% |
| |
|
|
|
|
Gene
Salkind |
30,000 |
30,000 |
0.0% |
__________________________
| 1. |
Assumes
the sale, transfer or other disposition of all common stock offered
pursuant to this prospectus by the selling
stockholder. |
| 2. |
Assumes
13,853,628 shares will be outstanding as of the termination of the
offering and does not take I into account other issuances by our company
for other reasons during the term of the
offering. |
| 3. |
Name
of individual at the entity who has voting or investment control over the
shares of common stock of Bovie. |
| 4. |
This
seller purchased its shares in the ordinary course of business; and at the
time of such seller’s purchase of the securities being registered for
resale, such seller had no agreements or understandings, directly or
indirectly, with any person to distribute the
securities. |
The
selling stockholders each may transfer, pledge, donate or assign the Common
Stock to lenders or others and each of these persons and their transferees and
successors in interest will be deemed to be a "selling stockholder" for purposes
of this prospectus. The number of shares of Common Stock beneficially owned by a
selling stockholder who transfers, pledges, donates or assigns Common Stock will
decrease as and when he or it takes such actions. The plan of distribution for
Common Stock sold under this prospectus will otherwise remain unchanged, except
that the transferees, pledgees, donees or other successors will become selling
stockholders hereunder.
Method
of Sale
The
Common Stock may be sold pursuant to this prospectus by a selling stockholder in
any of the following ways:
The
Common Stock may be sold through underwriters in one or more underwritten
offerings on a firm commitment or best efforts basis.
The
Common Stock may be sold through a broker or brokers. Transactions through
broker-dealers may include block trades in which brokers or dealers will attempt
to sell the Common Stock as agents but may position and resell the block as
principal(s) to facilitate the transaction. The Common Stock may be sold through
dealers or agents or to dealers acting as market makers.
The
Common Stock may be sold on the American Stock Exchange on which the securities
are listed or may be sold in private sales directly to purchasers.
A selling
stockholder may enter into hedging transactions with third parties (including
broker-dealers), and the third parties may engage in short sales of the Common
Stock in the course of hedging the positions they assume with such selling
stockholder, including, without limitation, in connection with distribution of
the Common Stock by such third parties. In addition, the selling stockholder may
sell short the Common Stock, and in such instances, this prospectus may be
delivered in connection with such short sales and the Common Stock offered
hereby may be used to cover such short sales. The selling stockholder may also
enter into option or other transactions with third parties that involve the
delivery of the Common Stock to the third parties, who may then resell or
otherwise transfer such Common Stock.
The
selling stockholder may also loan or pledge the Common Stock and the borrower or
pledgee may sell the Common Stock as loaned or upon a default may sell or
otherwise transfer the pledged Common Stock.
Common
Stock covered by this prospectus, which qualifies for sale pursuant to Rule 144
of the Securities Exchange Act of 1933 may also be sold under Rule 144 rather
than pursuant to this prospectus.
Each
selling stockholder reserves the right to accept and, together with its or his
agent from time to time, to reject, in whole or in part, any proposed purchase
of Common Stock to be made directly or through agents.
Timing
and Price
The
Common Stock may be sold from time to time by a selling stockholder. There is no
assurance that any selling stockholder will sell or dispose of Common
Stock.
Selling
stockholders will be subject to applicable provisions of the Securities Exchange
Act of 1934 and the SEC rules and regulations under that Act, and such
provisions may limit the timing of purchases and sales of our securities by
them.
Common
Stock may be sold at a fixed price, which may be changed, or at varying prices
determined at the time of sale or at negotiated prices. Such prices will be
determined by the holders of the Common Stock or by agreement between such
holders and purchasers or underwriters and/or dealers (who may receive fees or
commissions in connection with the sales).
Proceeds,
Commissions and Expenses
We will
not receive any of the proceeds from this offering.
The
selling stockholder will be responsible for payment of all commissions,
concessions and discounts of underwriters, dealers or agents, if
any.
We are
being reimbursed up to $60,000 by ACMI Corporation (which sold the shares to the
selling stockholders) and, if expenses exceed that amount, then by the selling
stockholders for all further costs of the registration of the securities,
including, without limitation, SEC filing fees and expenses of compliance with
state securities or "blue sky" laws.
The
selling stockholder and any broker-dealers or agents that participate with the
selling stockholders in the distribution of the Common Stock may be deemed to be
"underwriters" within the meaning of the Securities Act, and any commissions
received by them and any profit on the resale of the Common Stock may be deemed
to be underwriting commissions or discounts under the Securities
Act.
Registration
of the Common Stock
We agreed
with the selling stockholders to keep the registration statement, of which this
prospectus is a part, effective until the earlier of:
The
expiration of two (2) years from the date hereof;
Such time
as all of the shares offered by this prospectus have been sold by the selling
stockholders;
Such time
as all of the shares have been otherwise transferred to persons who may trade
such shares without restriction under the Securities Act; or
Such time
as the selling stockholders may sell all of the shares held by them without
registration pursuant to Rule 144 under the Securities Act.
We intend
to de-register any of the shares not sold by the selling stockholders at the end
of such period. At such time, however, any unsold shares may be otherwise freely
tradable subject to compliance with Rule 144 under the Securities
Act.
The
validity of the shares of common stock offered hereby will be passed upon for us
by Sierchio Greco & Greco, LLP. As of November 15, 2004, Alfred V. Greco, a
principal of Alfred V. Greco PLLC, a partner of Sierchio Greco & Greco, LLP,
beneficially owned an aggregate of 381,500 shares of our common stock, inclusive
of options. Mr. Greco is also a director of our Company.
The
consolidated financial statements and the related consolidated financial
statement schedules incorporated in this prospectus by reference from the
Company's Annual Report on Form l0-KSB for the year ended December 31, 2004 have
been audited by Bloom & Company LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file at the SEC’s public
Reference Room at 450 Fifth Street, N.W., Washington, D.C. Please call the SEC
at 1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public from the SEC’s website at http://www.sec.gov. Our
common stock is listed on the American Stock Exchange or AMEX, under the symbol
“BVX” and all reports, proxy statements and other information filed by us with
the AMEX may be inspected at the AMEX’s offices at 86 Trinity Place, New York,
New York 10005. You may find additional information about us and our
subsidiaries at http://www.boviemedical.com. The
information on our website is not a part of this prospectus.
We
incorporate by reference into this prospectus 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, as amended (the “Exchange Act”) (other than
information in such future filings deemed, under SEC rules, not to have been
filed), after the date of this prospectus and until the selling stockholders
have sold all of the common stock to which this prospectus relates or this
offering is otherwise terminated.
| · |
Our
Registration Statement on Form 8-A 12B filed with the SEC on November 3
2003; |
| · |
Our
Annual Report on Form 10KSB for the year ended December 31 2004 filed with
the SEC on March 31 2005. |
| · |
Our
Annual Report as amended on Form 10KSB/A for the year ended 12/31/04 filed
with the SEC on July 15, 2005. |
| · |
Our
Annual Report as amended on Form 10KSB/A for the year ended 12/31/04 filed
with the SEC on August 25, 2005. |
| · |
Our
quarterly report on Form 10QSB for the quarterly period ended March 31,
2005 filed with the SEC on May 13, 2005. |
| · |
Our
Quarterly Report as amended on Form 10QSB/A for the quarterly period ended
March 31, 2005 filed with the SEC on July 15,
2005. |
| · |
Our
Quarterly Report as amended on Form 10QSB/A for the quarterly period ended
March 31, 2005 filed with the SEC on August 25,
2005. |
| · |
Our
Current Report on From 8-K filed with the SEC on May 25,
2005. |
| · |
Our
Quarterly Report on Form 10QSB for the quarterly period ended June 30,
2005 filed with the SEC on August 16, 2005. |
| · |
Our
Quarterly Report as amended on Form 10QSB/A for the quarterly period ended
June 30, 2005 filed with the SEC on August 25, 2005.
|
The
information incorporated by reference in this prospectus is an important part of
this prospectus. Any statement in a document incorporated by reference in this
prospectus will be deemed to be modified or superseded to the extent a statement
contained in this prospectus or any other subsequently filed document that is
incorporated by reference in this prospectus modifies or supersedes such
statement.
Upon
request, Bovie will provide, free of charge, to each person to whom a prospectus
is delivered, including a beneficial owner, a copy of any or all information
that has been incorporated by reference in the prospectus but not delivered with
the prospectus. Any such request may be made orally or in writing to Bovie
Medical Corporation, 7100 30th Avenue
North, St. Petersburg, Florida 33710, Attention: Steven Maclaren, Acting
Controller, Tel. No.: (727) 384-2323.
INFORMATION
NOT REQUIRED IN PROSPECTUS
ITEM
14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The
following table sets forth the fees and expenses in connection with the issuance
and distribution of the securities being registered hereunder. Except for the
SEC registration fee, all amounts are estimates.
|
SEC
registration fee
|
$950
|
|
Accounting
fees and expenses
|
$20,000
|
|
Legal
fees and expenses
|
$75,000
|
|
Printing
and engraving expenses
|
$2,000
|
|
Miscellaneous
expenses
|
$500
|
|
Total
|
$98,450
|
ITEM
15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section
145 of the Delaware General Corporation Law (“DGCL”) permits indemnification of
officers, directors and other corporate agents under certain circumstances and
subject to certain limitations. The Registrant's Certificate of Incorporation
and Bylaws provided that the Registrant shall indemnify its directors, officers,
employees and agents to the full extent permitted by the DGCL, including in
circumstances in which indemnification is otherwise discretionary under such
law. In addition, with the approval of the Board of Directors and the
stockholders, the Registrant has entered into separate indemnification
agreements with its directors, officers and certain employees which require the
Registrant, among other things, to indemnify them against certain liabilities
which may arise by reason of their status or service (other than liabilities
arising from willful misconduct of a culpable nature) and to obtain directors'
and officers' insurance, if available on reasonable terms.
These
indemnification provisions may be sufficiently broad to permit indemnification
of the Registrant's officers, directors and other corporate agents for
liabilities (including reimbursement of expenses incurred) arising under the
Securities Act of 1933.
There is
no pending litigation or proceeding involving a director, officer, employee or
other agent of the Registrant in which indemnification is being sought nor is
the Registrant aware of any threatened litigation that may result in a claim for
indemnification by any director, officer, employee or other agent of the
Registrant.
The
Registrant has obtained liability insurance for the benefit of its directors and
officers.
ITEM
16. EXHIBITS
The
following documents are filed as part of this Registration
Statement:
|
Exhibit
Number
|
Description
|
|
4.1* |
Stock
Certificate of Bovie |
|
4.2* |
Registration
Rights Agreement dated May 8, 1998 between Maxxim Medical, Inc. and An-Con
Genetics, Inc. |
|
4.3*
|
Assignment
of Registration Rights between Bovie Medical Corporation
and Buyers of shares of Bovie Medical Corporation Common
Stock dated September, 2004 |
|
5 |
Opinion
of Sierchio Greco & Greco LLP |
|
10.1*
|
Common
Stock Purchase Agreement dated as of September 24, 2004, among ACMI
Corporation and selling stockholders |
|
23.1 |
Consent
of Sierchio Greco & Greco LLP (contained in Exhibit
5) |
|
23.2 |
Consent
of Bloom & Company, Independent Auditors |
|
24* |
Power
of Attorney (contained in the signature page hereof) |
|
99.1*
|
Amended
Redacted Agreement between Arthrex, Inc. and Bovie Medical Corporation
dated June, 2002 as redacted which replaced prior exhibit filed with form
S-3 on November 29, 2004, and as amended and filed on July 15, 2005 and
granted confidential treatment pursuant to Rule 406 under the Securities
Act of 1933, as amended.. |
________________________
*
Previously filed.
ITEM
17. UNDERTAKINGS
Insofar
as indemnification by the Registrant for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions referenced in Item 15 of this
Registration Statement or otherwise, the Registrant has been advised that in the
opinion of the 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 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 hereunder, the Registrant
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction in 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.
The
undersigned registrant hereby undertakes:
|
(1) |
To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement: |
|
(i) |
To
include any prospectus required by section 10(a)(3) of the Securities Act
of 1933; |
|
(ii)
|
To
reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from
the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; 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 the registration
statement. |
|
(2)
|
That,
for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof. |
|
(3)
|
To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering. |
The
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to section 13(a) or section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
The
undersigned registrant hereby undertakes that:
|
(1)
|
For
purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in the
form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective;
and |
|
(2)
|
For
the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at the time shall be
deemed to be the initial bona fide offering
thereof. |
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
Melville, State of New York on August 25, 2005.
|
BOVIE
MEDICAL CORPORATION
|
|
Andrew
Makrides |
|
President,
Chief Executive Officer |
Pursuant
to the requirements of the Securities Act of 1933, this Amendment No. 3 to
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
|
Name
|
Title
|
Date
|
| |
|
|
|
/S/
Andrew Makrides_
|
|
August
25, 2005
|
|
Andrew
Makrides
|
President,
Chief Executive Officer,
Director,
(Principal Executive Officer and Acting Principal Financial
Officer)
|
|
| |
|
|
|
|
|
|
|
Charles
Peabody***
|
|
|
| |
|
|
|
/S/George
W. Kromer*_
|
Director
|
August
25, 2005
|
| George
W, Kromer |
|
|
| |
|
|
|
|
Director
|
|
| J.
Robert Saron |
|
|
| |
|
|
|
/S/Michael
Norman*
|
Director
|
August
25, 2005
|
|
Michael
Norman
|
|
|
| |
|
|
| |
|
|
|
/S/
Randy Rossi*
|
Director
|
August
25, 2005
|
|
Randy
Rossi
|
|
|
| |
|
|
|
/S/
Brian H. Madden*
|
Director
|
August
25, 2005
|
|
Brian
H. Madden
|
Director
|
|
|
Alfred
V. Greco **
|
|
|
_____________________
* Signed on
behalf of the named party by Andrew Makrides, attorney in fact.
**
Resigned as a director for personal reasons on May 19, 2005
***Resigned as an Officer and Director on August 12,
2005
|
INDEX
TO EXHIBITS |
| |
|
|
Exhibit |
Description |
|
4.1 |
Stock
Certificate of Bovie1 |
|
4.2 |
Registration
Rights Agreement dated May 8, 1998 between Maxxim Medical, Inc. and An-Con
Genetics, Inc.1 |
|
4.3 |
Assignment
of Registration Rights between Bovie Medical Corporation and Buyers of
shares of Bovie Medical Corporation Common Stock dated September,
20041 |
|
|
|
|
10.1 |
Common
Stock Purchase Agreement dated as of September 24, 2004, among ACMI
Corporation and selling stockholders.
1 |
|
|
|
|
|
|
|
24 |
Power
of Attorney (contained on the signature page of the Registration
Statement)1 |
|
99.1 |
Agreement
between Arthrex, Inc. and Bovie Medical Corporation dated
June, 2002.1 |
_______________________
|
1. |
Previously
filed. |
|
2. |
Filed
herewith. |
| |
|